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Pitts v. Pitts

Pitts v. Pitts, 87 S.E. 391 (Ga. 1915)
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Court
Supreme Court of Georgia · State Highest Courts
Decided
December 17, 1915
Judges
Beck
Citations
87 S.E. 391144 Ga. 4231915 Ga. LEXIS 225
Cited by 6
Headnotes
An application for temporary-alimony must be based on a pending suit for divorce or for permanent alimony. In the present case the petition-was one merely for temporary alimony, and did not give the Judge Jurisdiction at chambers, in the absence of a showing that there was a suit for divorce or for permanent alimony pending, to allow temporary alimony.
Summary
Temporary alimony. Before Judge Bartlett. Haralson superior court. April 2Í, 1915. " Mary Pitts, alleging herself to be "the wife of Julius ■ Pitts, brought against him a petition'addressed"''to the judge -(naming 'him) of the superior court of Haralson county, which, after' setting forth the'date of the'marriage, alleges, that on a given date the husband abandoned the wife without cause, and has continued.to reside apart from her, and has failed and refused to ■ contribute towards her support, although he is amply able to- support her in comfort; that they are living in a bona fide state of -séparation; the character and the value of the defendant’s property; that there are no children, and petitioner has no source of income' except from her personal labor; and that the defendant will dispose of his property unless restrained from so doing by an injunctive order of the court. She prays that “your honor require said Julius C. Pitts to pay over to her, to be used for her support, such sums of money, and at such times as may be deemed proper to your honor; and that such other proceedings may be had as are provided by law.” She further prayed for attorney’s fees, for process, and for an injunction restraining the defendant from disposing of his property. The petition was demurred to generally and specially. At the hearing at chambers the judge granted temporary alimony and counsel fees. This order was excepted to upon various grounds, among them, upon the ground “that the judge of the court thereof was without jurisdiction' to render said judgment or render said order on said application for temporary alimony, there being no proper legal basis therefor.”.

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Opinion of the Court — Beck

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Beck, J.

(After stating the foregoing facts.) We are of the opinion that the court erred in granting the order and judgment excepted to in this case. There is no allegation in the petition that there was pending a suit for divorce, or a suit for permanent alimony; and in the absence of a showing that there was a suit, either for divorce or permanent alimony, the application for temporary alimony could not be maintained. In the case of Stallings v. Stallings, 127 Ga. 464 ( 56 S. E. 469 , 9 L. R. A. (N. S.) 593), it was said: “In order for a jpdge at chambers to have jurisdiction to hear an application for temporary alimony there must be pending a proceeding by bill or petition for permanent alimony, or for divorce;” the court citing the case of Yoemans v. Yoemans, 77 Ga. 124 ( 3 S. E. 354 ). See also Park’s Ann. Code, §§ 2976, 2986, and citations thereunder. The defendant in error insists •that the petition in this case should be treated as one brought to recover permanent alimony and temporary alimony also; and that it differs from the case of Yoemans v. Yoemans, supra, because in that case there was no prayer for process, while there is a prayer for process in the instant case. We do not think that the fact that there is a prayer for. process converts this petition into one which could be treated as a suit for permanent alimony. Except in this one particular (the fact that there is a prayer for process), the entire petition seems to be addressed to the judge, *425 and to seek interlocutory relief. It is addressed to the judge by name, and prays that the judge will allow to petitioner for her support such sums as may seem reasonable and proper to the judge. It was the only application before the judge when he exercised jurisdiction at chambers in fixing the amount allowed in the order for temporary alimony. No amendment was offered to show that a suit for divorce or for permanent alimony was pending, or that this was a suit intended as one for permanent alimony. Construing the petition most strongly against the petitioner, this should be treated merely as an application for temporary alimony, and the judge should not have entertained it in the absence of some showing tha't there was a basis for such an application in the fact that there was a suit for permanent alimony or for divorce then pending. Judgment reversed.

All the Justices concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 6 cases

View all citing references →
1916: 11930: 21932: 11942: 11951: 119162026peak 1930 · 2

Relies on it most ⓘ

  1. Wilson v. Wilson153 S.E. 9 (Ga. 1930)
  2. Wilson v. Wilson153 S.E. 10 (Ga. 1930)
  3. Pelot v. Pelot18 S.E.2d 548 (Ga. 1942)
  4. Sellers v. Sellers164 S.E. 769 (Ga. 1932)
  5. Combs v. Combs90 S.E. 862 (Ga. 1916)
  6. Whaley v. Whaley66 S.E.2d 722 (Ga. 1951)

Most recent

  1. Whaley v. Whaley66 S.E.2d 722 (Ga. 1951)
  2. Pelot v. Pelot18 S.E.2d 548 (Ga. 1942)
  3. Sellers v. Sellers164 S.E. 769 (Ga. 1932)
  4. Wilson v. Wilson153 S.E. 10 (Ga. 1930)
  5. Wilson v. Wilson153 S.E. 9 (Ga. 1930)
  6. Combs v. Combs90 S.E. 862 (Ga. 1916)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Yoemans v. Yoemans, 3 S.E. 354 (Ga. 1887) 9
Stallings v. Stallings, 56 S.E. 469 (Ga. 1907) 65

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