Gay v. Pantell , 164 Ga. 738 ( 1927 )

Atkinson, J.

In an equity suit to annul a marriage contract on the ground that the marriage was void ab initio, a verdict was returned refusing to annul the marriage. The plaintiff’s motion for a new trial was overruled and she excepted.

1. One ground of the motion for new trial complained of the following charge: “First, I charge you upon that subject that a license was not essential to marriage.” Also, “The fourth contention is, as I understand it,' on the part of the plaintiff, that the alleged marriage in South Carolina was void because there was no license. I charge you that the absence of a license does not make the marriage void.” Held, that this charge will not require a reversal because, as alleged: (a) It states an incorrect principle of law. (b) While a marriage without a license might not be void under the law of South Carolina, still a marriage without a license in accordance with the statutes of South Carolina might be voidable, and might be avoided in a court of proper jurisdiction.

2. Several of the grounds of the motion for new trial complain that the verdict was contrary to certain portions of the charge, and to the uncontradicted evidente as to the matters to which the charge related. These ground's are merely elaborative of the general grounds which complain that the verdict is contrary to the evidence and to the law and the principles of justice and equity.

3. The evidence did not demand a verdict annuling the marriage.

4. Other assignments of error are not insisted upon in the brief of the attorneys for the plaintiff in error, and will be treated as abandoned.-

5. The defendant did not appear, and no question was raised as to the right to annul a marriage in an equity suit in lieu of a statutory proceeding for divorce under the Civil Code (1910), §§ 2944 et seq. This decision is not intended to recognize that a suit to annul is the proper procedure for setting aside a marriage. That question is left open, as was done in Griffin v. Griffin, 130 Ga. 527 (61 S. E. 16, 16 L. R. A. (N. S.) 937, 14 Ann. Cas. 866).

Appeal and Error, 4 C. J. p. 1068, n. 22.

Marriage, 38 C. J. p. 1281, n. 54; p. 1306, n. 78; p. 1355, n. 29.

No. 5639. September 13, 1927. Oliver & Oliver, for plaintiff.

Judgment affirmed.

All the Justices concur..