McLendon v. McLendon

Supreme Court of Georgia1941-04-18No. No. 13581

192 Ga. 70

Summary · law.co

Holding. The court lacks jurisdiction to review this case because, despite its initial equitable features, it became a suit on a foreign alimony judgment—which is merely an action on a debt of record—rather than an alimony case within the court's constitutional jurisdiction. The case is transferred to the Court of Appeals.

A former spouse sought to recover past-due alimony installments from a judgment rendered in Maryland, along with equitable remedies including an injunction and receiver appointment. The trial court dismissed claims for installments more than five years old and denied the requests for injunctional relief and receivership through sustaining demurrers. The plaintiff accepted these adverse rulings without appealing them.

The court examined whether it had jurisdiction to review the remaining claims. Although the original petition contained equitable features that would normally invoke the court's equity jurisdiction, those features were eliminated through the demurrer rulings. The court concluded this was fundamentally a suit on a foreign judgment for alimony—essentially a debt collection action—rather than a proceeding to establish or enforce an original alimony obligation. Such suits on foreign alimony judgments do not fall within the court's constitutional jurisdiction over alimony cases.

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

Key issues

Whether a suit on a foreign alimony judgment falls within the Supreme Court's jurisdiction over alimony cases
Whether equitable features that are eliminated by demurrer rulings can confer or maintain equity jurisdiction
The distinction between suits for original alimony allowances and suits to enforce foreign alimony judgments as debts

Procedural posture

The defendant appealed adverse rulings on demurrers in an action for recovery of past-due alimony installments from a Maryland judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Reid, Chief Justice.

This is an action for a judgment for past- due installments under a judgment for alimony, rendered in the State of Maryland. The plaintiff also prayed for an injunction restraining the defendant from alienating his property, and for the appointment of a receiver. The judge sustained demurrers whereby the claim for recovery of installments due more than five years before institution of the present suit was eliminated, as well as the prayers for injunction and receivership. Other demurrers general and special were overruled, and to these adverse rulings the defendant excepted.

In compliance with rule 6-a (Code, § 24-4507) the plaintiff in error states in the bill of exceptions that “This case comes to the Supreme Court, because the suit involves alimony, and for the reason that the plaintiff sought equitable relief in the original bill.”

The equitable features of the petition were eliminated by the rulings on demurrer, and the plaintiff acquiesces in those rulings, no cross-bill of exceptions having been filed. A case may begin as an action in equity; but in its progress the equitable features may become eliminated, so that the final judgment would be such that this court has no jurisdiction to review the exception to it. Bartlett v. Walker, 189 Ga. 154 (5 S. E. 2d, 373); Regal Textile Co. v. Feil, 189 Ga. 581, 584 (6 S. E. 2d, 908). The equitable features of the case having been eliminated, it does not fall within the jurisdiction of this court as an “equity case.” Code, § 2-3005. Nor do we think that this is an “alimony case” within the meaning of the provision of the constitution fixing the jurisdiction of this court. This court necessarily so ruled by the transfer of the case of Brown v. Brown, 24 Ga. App. 512 (101 S. E. 315), a suit on a foreign judgment for alimony, to the Court of Appeals. See Housley v. Wagner, 25 Ga. App. 474 (103 S. E. 880). In Potter v. Potter, 40 Ga. App. 324 (149 S. E. 579), the Court of Appeals said, in discussing another point: “This.was a suit on a foreign judgment for alimony. . . It was not an action to recover alimony.” A suit on a foreign judgment for alimony is simply an action on a debt of record (Little Rock Cooperage Co. v. Hodge, 112 Ga. 521, 37 S. E. 743), and is not one based upon a cause of action for an allowance from the husband for the support of the wife as provided for in the Code, § 30-201 et seq. It is only actions of the latter character and proceedings which are but a continuation of such actions, such as attachments for contempt (Bilbo v. Bilbo, 167 Ga. 602, 603, 146 S. E. 446), that should be designated as alimony cases. See Hayes v. Hayes, 191 Ga. 237 (11 S. E. 764). Heakes v. Heakes, 157 Ga. 863 (122 S. E. 777), was a suit on a foreign judgment for alimony, but no express ruling was made in regard to the jurisdiction of the court; and in so far as it may be taken as an implied ruling thereon, we think that it should yield to the former judgment in Brown v. Brown, which we believe represents the correct rule. Tyson v. Tyson, 176 Ga. 137 (167 S. E. 172), was by a divided bench, and in so far as it may be in conflict with our ruling it should not be followed. For reasons stated the case is

Transferred to the Court of Appeals.

All the -Justices concur.