Opinion
21665.
ARGUED JUNE 13, 1962.
DECIDED JUNE 25, 1962.
Alimony, etc. Fulton Superior Court. Before Judge Pharr.
Marvin O'Neal, Jr., Cassandra E. Maxwell, for plaintiff in error.
S. S. Robinson, Slaton Clemmons, Assistant U.S. Attorney, Eugene Gunby, J. M. B. Bloodworth, Jack L. Camp, Tax Commissioner, King Spalding, Charles H. Kirbo, contra.
Where an alimony judgment was obtained in rem against the real property of a nonresident husband, service being perfected by publication and the divorce petition having specifically prayed for a judgment against the property, such judgment is conclusive upon the husband. Thereafter, he may not urge its alleged invalidity, on the grounds of lack of personal service and seizure, in response to an application for disbursement of funds held in the registry of the superior court from condemnation proceedings under the provisions of Code Ann. § 36-1104 et seq. Carter v. Bush, 216 Ga. 429, 430 ( 116 S.E.2d 568); Code § 110-502; Forrester v. Forrester, 155 Ga. 722 ( 118 S.E. 373); Pendley v. Tumlin, 181 Ga. 808, 811 ( 184 S.E. 283).
The trial judge having correctly determined that the divorce and alimony decree was valid, he did not err in awarding the proceeds from the condemnation of the property to the wife.
Judgment affirmed. All the Justices concur.
ARGUED JUNE 13, 1962 — DECIDED JUNE 25, 1962.
The Housing Authority of the City of Atlanta brought its petition in the Fulton Superior Court, by virtue of its right of eminent domain, to condemn certain described real estate in Fulton County, naming the following as respondents in said action: Mrs. Naomi K. Cureton (now Andrews); Fred E. Cureton; The United States of America; Eugene Gunby, Fulton County Ordinary; The City of Atlanta; and Jack L. Camp, Tax Commissioner for Atlanta and Fulton County.
Assessors were appointed, as provided by law, and conducted a hearing in which they entered an award in favor of the condemnees for $3,650. Thereafter, an order was entered in the Fulton Superior Court adjudging and decreeing that the property be condemned, vesting indefeasible fee simple title in the Housing Authority and ordering that payment of the sum awarded be paid into the registry of the Fulton Superior Court.
Mrs. Naomi K. Cureton (now Andrews) filed an application for disbursement of the fund to her, alleging she was entitled to such by virtue of a prior divorce and permanent alimony decree which vested in her the right to the property in question. Fred E. Cureton filed an answer to the application contending he was entitled to one-half of the proceeds from the condemnation of the land by virtue of a deed granting an undivided one-half interest in the property to him. He further contended that the alimony decree was void in that he was a nonresident, served only by publication, and that there was no seizure as is contemplated by the law.
At the hearing on the application, the divorce proceedings were introduced into evidence, including the petition in which the wife specifically prayed for the property in question which was within the court's jurisdiction, the proceeding for service by publication, and the final decree which awarded the undivided one-half interest to Naomi K. Cureton.
After due consideration, the trial judge issued an order awarding the entire sum remaining in the registry to Naomi K. Cureton (now Andrews). From this order Fred E. Cureton, the plaintiff in error here, brings his writ of error to this court, and contends that the alimony award of the property was void as to him.