Harris v. Harris , 205 Ga. 105 ( 1949 )

1. Rule 26 of the Rules of the Superior Courts (Code, Ann. Supp., § 24-3326) provides that "The service of any notice, process, motion, rule or order by the court on the attorney of record for any party to a cause pending in any court in this State shall be deemed sufficient service." The provisions of this rule are applicable only after a defendant has been properly served and brought into court and employed an attorney to represent him. Beebe v. Smith, 76 Ga. App. 391 (46 S.E.2d 212).

2. While a proceeding to enforce an alimony judgment by attachment for contempt is founded upon and is "an incident of the alimony suit" (Bilbo v. Bilbo, 167 Ga. 602, 146 S.E. 446), and jurisdiction to entertain such a proceeding rests exclusively in the court offended (Curtright v. Curtright, 187 Ga. 122, 200 S.E. 711; Goodrum v. Goodrum, 202 Ga. 135, 42 S.E.2d 450), yet, after verdict and judgment, unexpected to, the alimony suit is no longer "a cause pending" in court, within the meaning of Rule 26, supra, and a proceeding to enforce such a judgment by attachment for contempt is in the nature of a separate and independent action. Pace v. Bergquist, 173 Ga. 112 (4) (159 S.E. 678); Girtman v. Girtman, 191 Ga. 173 (11 S.E.2d 782); Mendel v. Mendel, 202 Ga. 675 (44 S.E.2d 257).

3. In the present action to enforce an alimony judgment by attachment for contempt, the plaintiff prayed for service upon the attorney of record for the defendant in the original divorce and alimony suit. All that the record shows respecting service of the contempt petition and nisi is this entry: "Georgia, Peach County. I, Geo. B. Culpepper Jr., acknowledge receipt of copy of the within rule, but I deny that I am counsel for Addison Eugene Harris, and have not represented him for months and do not know where he is. This December 10, 1948. Geo. B. Culpepper Jr." Under the foregoing rules of law, the trial judge properly denied the prayers of the petition on the ground there was no legal service upon the defendant, or a waiver thereof, or service upon "the attorney of record . . to a cause pending."

Judgment affirmed. All the Justices concur.

No. 16577. MARCH 16, 1949.