Diggs v. Diggs

Felton, C. J.

The only question in this case is whether the children of a second ceremonial marriage, which was void because the father had previously been ceremonially married to another woman from whom he had not been divorced, are entitled to a year’s support from their father’s estate where the second marriage had not been declared void by a court of competent jurisdiction and where the children were born before the commencement of any prosecution for polygamy. The answer is in the a|3rmative. Campbell v. Allen, 208 Ga. 274 (66 S. E. 2d 226) and cases cited; Code §§ 53-104, 26-5603. Since the second marriage in this case was a ceremonial one, the above case is in effect a unanimous decision with respect to the facts in this case. In view of the full consideration given to that case and the recentness of the decision, the request to certify the question to the Supreme Court is denied.

The jury on appeal to the superior court found in favor of a year’s support for the children of the second marriage, and the court did not err in denying the motion for a new trial filed by the lawful wife who caveated the appraiser’s return.

The above ruling also controls case number 35534 on the merits. In case number 35534 it was not error, under the facts of this case, to overrule the lawful wife’s motion to dismiss the caveat of the children of the second marriage to her application for a year’s support.

Judgment affirmed.

Qidllian and Nichols, JJ., concur.