Opinion
15232.
SEPTEMBER 7, 1945.
Annulment of marriage. Before Judge Hendrix. Fulton superior court. April 23, 1945.
Clifford R. Wheeless and O. C. Hancock, for plaintiff.
Howard, Camp Tiller, for defendant.
1. Where the plaintiff, in a hearing on a demurrer of the defendant, sought under the soldiers' and sailors' civil relief act to stay a proceeding which he had brought for the annulment of a marriage with the defendant, on a ground which is a ground of divorce, if such action could in no event be maintained it could not be said that the ability of the plaintiff to prosecute the action was materially affected by reason of his military service, and the refusal of the trial court to stay the proceeding in such circumstances would not be an abuse of discretion.
2. Since an action for annulment of a marriage can not be maintained in this State on any ground which by law is made a ground of divorce, a petition for annulment because of alleged fraud and duress by the defendant, which are grounds of divorce in this State, did not set forth a cause of action, and the court did not err in sustaining the defendant's general demurrer. Baxter v. Rogers, 195 Ga. 274 ( 24 S.E.2d 52); Mackey v. Mackey, 198 Ga. 707 ( 32 S.E.2d 764).
No. 15232. SEPTEMBER 7, 1945.
Robert Byron Burke filed in Fulton superior court against Louise Grubbs a petition which alleged substantially the following: The defendant, a resident of Philadelphia, Pennsylvania, who was serving as a Wave in the United States Navy, preferred charges against the petitioner, and Aviation Cadet in the Navy, before the Chief of Staff for the Fifth Naval District at Great Lakes Naval Training Station, Great Lakes, Illinois, who was the commanding officer in charge of the petitioner, and insisted that the latter was guilty of cohabitation with her and that as a result she had become pregnant. The petitioner denied the charges and insisted that they were fraudulently made for the purpose of obtaining an allotment. Notwithstanding the fact that the charges were false, the petitioner received a positive order from his commanding officer, "directing that he marry [the defendant] or else." Acting on such order, the petitioner was forced, contrary to his will, to enter into a marriage ceremony with the defendant, but he failed and refused to live with the defendant as her husband. The petition prayed for: (1) process; (2) service by publication on the defendant; (3) judgment declaring the marriage void.
The defendant demurred on the grounds that: (1) the petition set forth no cause of action; (2) the petition showed upon its face that the petitioner and the defendant entered into a marriage ceremony, and that the basis of the action to declare the marriage void was alleged fraud and duress by the defendant, and, fraud and duress being grounds for divorce, the petitioner was not entitled to the relief sought; (3) the petitioner, having a legal remedy, was not entitled to equitable relief.
The petitioner, through his counsel, moved the court to stay the proceedings on the ground that the petitioner was in the United States Navy, his address being Ensign Robert B. Burke, U.S. N. A. B. No. 939, care Fleet Post Office, San Francisco, California, now at some place in the South Pacific, and his Naval service materially affected his ability to prosecute the case.
On April 23, 1945, the trial court entered the following orders: First, "After argument heard, it appearing that the only matter now before the court is that of the consideration of the defendant's demurrer to plaintiff's petition, the motion to stay is denied;" and second, "The foregoing demurrer is sustained and the petition is dismissed." The exception is to the above judgments.
1. The plaintiff through his counsel filed an application in the trial court, praying for a stay of the proceeding under the provisions of the soldiers' and sailors' civil relief act of 1940 (50 U.S.C.A., § 521, cumulative annual part), as follows: "At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service."
Under the above act, a person in military service is entitled as a matter of law to a stay of any proceeding by or against him in a case to which the statute is applicable, upon his bare application showing that he is in the military service, unless it appears that his ability to prosecute or defend the proceeding is not materially impaired by reason of his military service. Gates v. Gates, 197 Ga. 11 (2) ( 28 S.E.2d 108); Lankford v. Milhollin, 197 Ga. 227 (2) ( 28 S.E.2d 752).
The issue before the court at the time the application to stay the proceeding was made was only as to the sufficiency of the petition against a general demurrer of the defendant. A ruling adverse to the plaintiff would operate as res judicata and bar a subsequent suit for annulment between the same parties based on the same cause of action ( DeLoach v. Georgia Coast Piedmont R. Co., 144 Ga. 678, 87 S.E. 889, Hughes v. Henderson, 61 Ga. App. 743 (2) 7 S.E.2d 317), but would not estop the plaintiff under such doctrine from subsequently instituting an action for divorce, for the reason that such a suit would be based on a different cause of action. If, therefore, the plaintiff is unable to prosecute the suit for annulment of the marriage, his inability to do so would exist in civilian life no less than in military service; and, since as shown in the second headnote of this opinion, an annulment of a marriage may not be had on any ground which is a ground of divorce, as in this case, the refusal of the court to stay the proceeding was not an abuse of discretion. Boone v. Lightner, 319 U.S. 561 ( 63 Sup. Ct. 1223, 87 L. ed. 1587).
2. The ruling announced in the second headnote does not require elaboration.
Judgment affirmed. All the Justice concur.