Mosely v. Mosely , 181 Ga. 543 ( 1935 )

Atkinson, Justice.

1. Subsequent voluntary cohabitation will render void a judgment for temporary alimony and attorney’s fees for representing the wife in the alimony proceedings. Code of 1933, § 30-217; Weeks v. Weeks, 160 Ga. 369 (127 S. E. 772).

2. Where a suit for alimony was based on separation wherein the wife separated from the husband on account of cruel treatment by the husband, the cause of action was different from the cause of action in a subsequent suit by the wife for alimony and attorney’s fees, based on separation wherein the husband, after the renewed cohabitation above mentioned, abandoned the wife and went off to live with another woman. The ease differs from Cox v. Cox, 163 Ga. 93 (135 S. E. 504), in which the same facts were alleged in both cases; in one the facts were alleged to constitute cruel treatment; in the other the facts were alleged to constitute wilful and continued desertion.

No. 10800. December 14, 1935. G. M. Nottingham and A. E. Gilmorp Jr., for plaintiff in error. B. Habenicht Cason and Harry N. Nottingham, contra.

3. In the circumstances stated above, pendency of the first suit at the time of institution of the second suit may not, under the Code of 1933, § 3-601, be pleaded in abatement of the second suit.

4. At the hearing prior to the appearance term, the judge did not err for any reason assigned, after introduction of evidence, in overruling the plea in abatement and in granting temporary alimony and attorney’s fees. No point was made that the ruling on the plea in abatement was premature. Judgment affirmed.

All the Justices concur.