IRBY v. IRBY

Supreme Court of Georgia1929-01-19No. No. 6600

167 Ga. 708

Summary · law.co

Holding. The motion to dismiss the bill of exceptions is sustained and the writ of error is dismissed because the trial court's order striking the case from the calendar pending purge of contempt is not a final judgment capable of appellate review.

Mrs. Irby sued her husband for temporary and permanent alimony. The trial court awarded temporary alimony, but the husband failed to make all required payments. When Mrs. Irby filed contempt proceedings, the court found the husband in contempt, reduced the alimony amount, and gave him three days to pay the accrued balance to purge himself of contempt. He did not comply. Before the case could proceed to trial on the permanent alimony claim, Mrs. Irby moved to strike the case from the calendar and deny the husband a hearing based on his continuing contempt status. The trial court granted this motion, removing the case from the docket until the husband purged himself of contempt.

The husband appealed by bill of exceptions, arguing the trial court's order violated his constitutional rights. However, the appellate court dismissed the bill of exceptions based on lack of jurisdiction. The order striking the case from the calendar was not a final judgment because it did not finally dispose of the entire case or any material party's rights—the underlying alimony dispute remained pending and unresolved. Under the applicable statute, appellate review by bill of exceptions requires that the judgment being challenged would have constituted a final disposition of the cause if rendered as claimed.

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

Key issues

Whether an interlocutory order suspending trial pending purge of contempt constitutes a final judgment
Appellate jurisdiction over bills of exceptions when the underlying case remains pending
Requirements for final judgment in family law proceedings involving multiple issues

Procedural posture

The defendant appealed by bill of exceptions from an order striking the alimony case from the trial calendar based on his contempt of court, and the appellate court addressed a motion to dismiss for lack of jurisdiction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Beck, P. J.

Mrs. J. E. Irby filed suit for temporary and permanent alimony. Upon the hearing of the application for temporary alimony the judge of the superior court awarded a stated sum as temporary alimony. The defendant made certain payments as ordered, and failed to make other payments as they fell due. The wife filed contempt proceedings against the husband, for fail ure and refusal to pay alimony as ordered. Upon the hearing of the contempt proceedings the defendant was adjudged in contempt of court, but a reduction was made in the amount allowed as temporary alimony; and it was further provided in the order of the court that the defendant might purge himself of contempt by the payment, within three days, of a stated sum on the amounts of alimony accrued. This order was not complied with, and the defendant failed to purge himself of contempt by compliance with the order or by making any further showing as to his inability to pay. The suit for permanent and temporary alimony came on for trial and was on the trial calendar, and counsel urged a final determination of the issue in the case before the court and jury. The plaintiff filed a motion to “strike the case from the trial calendar and deny the defendant the right to be heard, on the ground that he was in contempt of court, and that said contempt worked a forfeiture of all his rights until he purged himself.” The court sustained this motion, and the case was stricken from the calendar and the docket “until the defendant purges himself of contempt.” The defendant took a bill of exceptions in which error is assigned upoii the order last referred to, on the ground that it violated alleged rights of the defendant under a specified paragraph of the constitution of the State. A motion was made in this court to dismiss the bill of exceptions, upon the ground that the judgment excepted to was not such a final judgment as could be brought under review in this court by a direct bill of exceptions.

The ground of the motion to dismiss the bill of exceptions based upon the want of jurisdiction in this court to entertain the same is sustained. Manifestly, the judgment excepted to is not a final judgment; it is not a final disposition of the cause, nor final as to any material party thereto. “No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.” Civil Code, § 6138. In the case of Carhart v. Mackle, 22 Ga. App. 520, 522 (96 S. E. 591), it was said: “We think the word ‘ cause,5 as used in this statute, refers to the entire case, the entire suit or litigation, and the entire question being litigated under the petition; and as long as any portion of the c cause ’ is pending in the court below, the ‘ cause ’ can not be carried to an appellate court, ‘ unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.’ Jones v. Daniel, 106 Ga. 850 (33 S. E. 41); Ross v. Mercer, 115 Ga. 353 (41 S. E. 594); State Mutual L. & A. Asso. v. Kemp, 115 Ga. 355 (41 S. E. 652); Fugazzi v. Tomlinson, 119 Ga. 622 (46 S. E. 831); McElroy v. State, 123 Ga. 546 (51 S. E. 596); Smith v. Estes, 128 Ga. 368, 370 (57 S. E. 685); Hightower v. State, 22 Ga. App. 276 (95 S. E. 873).” Other decisions of this court might have been cited, but it is unnecessary to either cite other cases or to quote from them. Writ of error dismissed.

All the Justices conawr.