The superior court is without jurisdiction to render a consent judgment for permanent alimony before the appearance term, and the present petition, alleging that the consent judgment here involved was void for that reason,
set forth a cause of action for cancellation of such judgment, and the trial court erred in sustaining the general demurrer and in dismissing the action.
(a) A consent judgment for permanent alimony is different from a contract to pay alimony, and, notwithstanding the fact that the petitioner here might be liable on such contract, the doctrine that he who would have equity must do equity has no relation to the subject-matter of the present suit to cancel the judgment for alimony because of lack of jurisdiction in the court to render the same, since the former wife has no equitable rights under that judgment to which the husband should give effect.
No. 16685. JULY 13, 1949.
Frederick DeLeon Gaither Sr. filed in Fulton Superior Court, against Olivia Gaither and Sheriff A. B. (Bud) Foster, residents of Fulton County, and Sheriff W. L. Broome, a resident of Dekalb County, a petition which alleged substantially the following: The petitioner and the principal defendant were formerly husband and wife, but are now divorced. On December 20, 1929, the former wife filed a suit in Fulton Superior Court against the petitioner for ne exeat, alimony, and custody of children. The petitioner was arrested and served with petition and process on December 28, 1929. On December 31, 1929, the following judgment was rendered: "The above case having come on for special hearing by consent of counsel for both sides; the same having been heard and it appearing to the court that the parties and their counsel have agreed to the custody of the children involved and to the alimony for the support of such children, and the attorneys fees, it is hereby ordered, adjudged and decreed that the defendant herein shall pay to the plaintiff the sum of $40 per month, payable $20 on the 2d and 17th of each and every month, from the date of this order; that the defendant shall pay the sum of $25 as attorneys' fees in this case, payable $5 on the 2d of each month until the sum mentioned shall have been paid; that the defendant shall pay any and all costs of court involved in this case; and that the plaintiff and defendant shall have equal custody of their minor children, each to have custody of them for a period of six months at a time, the children to remain with the parent in custody at all times unless they shall have been placed in a school at such time by agreement of parties. It is understood that the plaintiff is to have custody of such children for
the six months next after the signing of this order. Let the ne exeat be dismissed." The judgment was never entered on the bar docket or upon the minutes of the court, and is void because the court lacked jurisdiction to enter a final judgment prior to the trial term. Thereafter the petitioner removed to Cleveland, Ohio, where he now resides. Subsequently to the rendition of the judgment the children lived with the petitioner's father, B. G. (Boley) Gaither, for long periods of time and the petitioner sent his father money for their support, and sent them presents. The petitioner's father died testate a resident of DeKalb County, and his will was duly admitted to probate. The will devised to the petitioner, for and during his natural life, certain tracts of land, with the remainder over to Jerolene Gaither and Oliver Gaither, children of the petitioner and his former wife, who have conveyed their interest in remainder to the former wife. Both of the children are now sui juris. An administrator with the will annexed was appointed to administer the will and he has never assented to the devise to the petitioner, nor have all of the debts owing by the testator been paid. Following the death of petitioner's father, the former wife on September 8, 1947, procured the issuance of a fi. fa. in her favor against the petitioner in the sum of $7940, principal, and $4669.30 interest to September 2, 1947, which was levied by the Sheriffs of Fulton and DeKalb Counties, upon properties wherein the petitioner has a life estate under the will of his father. The fi. fa. is void because it is based upon a void judgment. Following the above-mentioned levies the properties have been advertised for sale and unless the defendants are enjoined the petitioner will be irreparably injured. The petitioner brings this suit in the court wherein the void judgment was rendered, and wherein the void fi. fa. was issued, to avoid a multiplicity of actions. The petitioner prayed: that process issue; that the defendant Broome be served by second original; that all of the defendants be temporarily and permanently enjoined; that both the judgment of December 31, 1929, and the fi. fa. of September 8, 1947, be decreed null and void; that the petitioner have a rule nisi, and for general relief.
The defendant Olivia Gaither interposed a general demurrer to the petition, which was sustained, and the petitioner excepted.
The defendant, Olivia Gaither, demurred on the grounds: (a) there is no equity in the petition since it appears that the petitioner entered into a consent judgment, and such consent estops him from denying the validity of the judgment, it appearing on the face of the petition that the court had jurisdiction of the petitioner and of the subject-matter of the suit; (b) the order dated December 31, 1929, is not a final judgment, and was taken under the provisions of the Code, § 30-213, which gives a judge of the superior court the authority to grant alimony upon three days' notice to the husband; (c) it does not appear that the judgment complained of was induced by fraud, accident, or mistake, and in the absence of such showing the petitioner, having consented to such judgment, is thereby estopped from denying the validity thereof; (d) the consent judgment of December 31, 1929, is a valid judgment which is binding on the parties irrespective of whether the same is a judgment for temporary alimony or is a final judgment for permanent alimony; (e) the petitioner is seeking the aid of equity and is not doing equity.
It appears that the judgment awarding alimony was by consent. The petition was filed in the clerk's office on December 20, 1929, and the judgment awarding alimony was dated December 31, 1929. Accordingly, the petition was filed in the clerk's office only eleven days before the judgment was rendered.
The judgment, which required the husband to pay $40 per month from the date thereof, attorney's fees in the case, all costs of court involved in the case, and which after giving the wife and husband equal custody of the children for periods of six months at a time, dismissed the ne exeat bond, was for permanent alimony. In Murray v. Dukes, 204 Ga. 865 (2) (52 S.E.2d 468), which involved a petition for custody and control and for support of a minor child, this court held: "The superior court is without jurisdiction to render a judgment for permanent alimony before the appearance term; such jurisdiction can not be conferred by consent of the parties; and such a judgment, being void for lack of jurisdiction, can not be the basis of contempt proceedings against the defendant for failure to pay permanent alimony."
Counsel for the former wife insist that the judgment, even if
void, was a consent agreement and is still binding on the parties as a contract, and hence, the husband seeking cancellation of the void judgment must first pay the amount agreed upon.
"A decree rendered in accordance with a consent verdict, though it may not be valid as a judgment of the court, will, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all the parties thereto." Driver v.Wood, 114 Ga. 296 (40 S.E. 257). However in Kantzipper v.Kantzipper, 179 Ga. 850, 852 (117 S.E. 679) this court said: "The consent order passed at the appearance term could amount to no more than evidence of the agreement; and unless some `appropriate' order or decree as to permanent alimony was rendered at a subsequent term, the wife was without a judgment upon which an execution could be issued."
The present judgment for alimony, which was void for want of jurisdiction in the court to render it before the appearance term, is a different thing from the contract upon which it is based or which it evidences. See, in this connection, Hayes v.Hayes, 191 Ga. 237 (11 S.E.2d 764), which distinguished between a suit for alimony and a suit on a contract to pay alimony. This being true, the doctrine that "he who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit" (Code, § 37-104), has no relation to the subject-matter of the petitioner's suit, which is to cancel a judgment for alimony that is void for want of jurisdiction, and under which judgment the former wife has no equitable rights to which the petitioner should give effect. Information Buying Company v. Miller,173 Ga. 786, 793 (161 S.E. 617); Atlanta Association of FireInsurance Agents v. McDonald, 181 Ga. 105 (2) (181 S.E. 822). Therefore such doctrine is not applicable to the present case.
"The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it." Code, § 110-709. The judgment here attacked being void for the reason above stated, the petitioner was entitled to have the same canceled as prayed. Accordingly, the trial court erred in sustaining the general demurrer and in dismissing the action.
Judgment reversed. All the Justices concur.