Winn v. Winn , 205 Ga. 314 ( 1949 )

When the act approved January 28, 1946 (Ga. L. 1946, p. 90), changing the divorce law was first construed by this court in Dugas v. Dugas, 201 Ga. 190, I dissented from the construction the majority of the court placed thereon. I construed the act to mean that it was only in cases where no defense was filed and the judge tried the case, that the judgment was held in abeyance for thirty days and was subject to being modified or set aside by a petition by any person at interest; but that, when the case was submitted to a jury, or where a defense was filed and the issue were tried before the judge, the judgment then rendered was a final judgment and a motion for new trial was the proper procedure. Since the Dugas case I have also dissented in all cases where the ruling of the majority therein stated has been followed. Gilbert v. Gilbert, 202 Ga. 752 (44 S.E.2d 485); Williams v. Williams, 203 Ga. 231 (46 S.E.2d 65); Allison v. Allison, 204 Ga. 202 (48 S.E.2d 723); Gault v. Gault, 204 Ga. 205 (48 S.E.2d 819); Huguley v. Huguley, 204 Ga. 692 (51 S.E.2d 445).

As I interpret the mode of procedure to review divorce trials, as set forth in the foregoing cases, we have entered into a realm of procedure hitherto unknown to the law, contrary to established modes of procedure, impregnated with innovations, and so intricate and complicated as to cause endless confusion to the bench and bar. Such procedure has modified and curtailed a litigant's rights under Code § 70-101 et seq., relating generally to motions for new trial, § 30-130, specifically relating to new trials in divorce cases, and is contrary to § 110-701 et seq., relating to the arrest and setting aside of judgments; though nowhere in the divorce act of 1946 is there anything that remotely indicates an intention to repeal the law relating to either. Following the interpretation of the act by the majority opinion in the Dugas case has already necessitated the development of a strange and unknown procedure; and future questions, which must inevitably arise, will lead further into this uncharted course of procedure, without the aid of a rule to guide or a precedent to follow.

The necessity of having to adopt and explore into a new field of procedure in divorce cases, in order to conform to the interpretation of the act as stated in the majority opinion in the Dugas case, has further strengthened my conviction that the majority of the court has construed the new divorce law contrary to the intent of the legislature. There are probably more divorce cases tried in our superior courts than all other cases combined, and maybe many times more. The legislative tendency in this era is to simplify legal procedure. It is inconceivable that this act be construed so as to give a legislative intent to abolish a simple and well-established procedure under which we have operated since the establishment of this court, and, by implication, substitute procedure which, so far as the writer knows, is unknown to any system of jurisprudence.

Nos. 16620, 16621. May 12, 1949.