Fuller v. Curry

Supreme Court of Georgia1926-05-14No. No. 5165

162 Ga. 293

Summary · law.co

Holding. The court affirmed the dismissal of the petition on demurrer, holding that the trial court did not err in granting the defendant's demurrer under the authority of McGonnell v. McGonnell.

A man who acknowledged service in his wife's divorce petition later sought to set aside the divorce decree and the judgment removing his disabilities. He claimed the wife had committed fraud by including an allegation in the petition that he was a resident of Fulton County when he actually resided in Gordon County, and that he did not know of this allegation when he acknowledged service. He further alleged that the wife testified falsely about his residence and obtained his acknowledgment of service without his knowledge of the residency claim, thereby deceiving both the court and himself.

The defendant filed a demurrer arguing the petition lacked equity, that the plaintiff was estopped from challenging the validity of the decree, and that no cause of action was stated. The trial court sustained the demurrer and dismissed the petition.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Jurisdiction based on defendant's residence in divorce proceedings
Whether fraud in obtaining acknowledgment of service vitiates a divorce decree
Estoppel against challenging the validity of a final divorce decree
Sufficiency of petition to state a cause of action for setting aside a decree

Procedural posture

The plaintiff appealed from a judgment of the Fulton Superior Court sustaining the defendant's demurrer and dismissing his equitable petition to set aside the divorce decree and judgment removing disabilities.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Gilbert, J.

On authority of McGonnell v. McGonnell, 135 Ga. 828 (70 S. E. 647), the court did not err in dismissing the petition on demurrer.

(a.) The case of Watts v. Watts, 130 Ga. 683 (61 S. E. 593), is distinguishable from McConnell v. McConnell, supra, in that the petition in the Waits case was dismissed by the court on its own motion prior to final judgment.

No. 5165.

May 14, 1926.

Petition to set aside decree. Before Judge Bell. Fulton superior court. October 23, 1925.

Mrs. E. C. Fuller instituted in Fulton superior court against B. H. Fuller a libel for divorce. It alleged, among other things, that “defendant herein is a resident and citizen of the State and county aforesaid, and subject to the jurisdiction of this court.” The defendant made the following acknowledgment of service on the petition: “Due and legal service of the above and foregoing petition for divorce acknowledged; all other and further service waived.” Subsequently B. II. Fuller filed a petition reciting the granting of a total divorce between the parties, and praying that the disabilities imposed upon him thereunder be removed; which petition was granted. Afterward he filed against Mrs. Elizabeth Curry (the plaintiff in the suit for divorce) an equitable petition setting up that at the time he acknowledged service as above stated he did not know that it was alleged in said suit that he was a citizen and resident of Fulton County, and did not know of the same until after he had procured the judgment removing his disabilities; that he has never been a resident of Fulton County, but at the time of the filing of said suit for divorce and the trial of the case resided in Gordon County; that he had just recently learned of the provision of law requiring that suits for divorce be brought in the county of the residence of the defendant, and of the allegation in the petition for divorce as to his residence; that the decree in said divorce proceeding was based upon the fraud of the plaintiff, in that she verified said petition, knowing at the time that the allegation therein as to the residence of defendant was untrue; that she testified falsely as to his residence, and procured the acknowledgment of service when he did not know of the allegation as to his residence; that this constituted a fraud upon the court and petitioner, and that the decree of divorce and the judgment removing his disability are consequently null and void. The prayer is that both be set aside and declared to be null and void.

(h) On the question of estoppel in such a ease, compare authorities cited in McLeod v. McLeod, 144 Ga. at p. 360 (87 S. E. 286).

Judgment affirmed.

All the Justices concur.

The defendant demurred to the petition, on the grounds, that it is without equity; that petitioner is estopped to question the validity and legality of the decree for divorce and the judgment removing his disabilities; and that it does not set forth a cause of action. The demurrer was sustained and the petition dismissed. The plaintiff excepted.

Joe M. Lang, for plaintiff. Weltn&r & Sims, for defendant.