Opinion
21143.
ARGUED JANUARY 10, 1961.
DECIDED FEBRUARY 9, 1961. REHEARING DENIED FEBRUARY 23, 1961.
Divorce, etc. Fulton Superior Court. Before Judge Tanksley.
Joan Larsen, for plaintiff in error.
P. C. King, Jr., Mary R. Brady, contra.
1. Where, at the insistence of the defendant in error, the court, over objection of the plaintiff in error, orders matters to be put in a brief of evidence, even though they be immaterial, the plaintiff has made a bona fide effort to brief only the material evidence, and exceptions depending on the evidence will be ruled upon.
2. Where the plaintiff's grounds for divorce are cruel treatment, and the defendant's cross-action seeks a divorce for desertion, it is reversible error to charge the jury that they may find a divorce in favor of both parties. To so find as the jury did here is a contradiction, contrary to the evidence and the law.
3. Where the plaintiff alleges cruel treatment, and the answer alleges cruel treatment by the plaintiff, and there is evidence to support both, it is reversible error to fail, without request, to charge, as provided in Code § 30-109, that the jury should deny a divorce to either if the jury found that the evidence supported the respective charges.
ARGUED JANUARY 10, 1961 — DECIDED FEBRUARY 9, 1961 — REHEARING DENIED FEBRUARY 23, 1961.
This is a domestic-relations case, in which the plaintiff alleges cruel treatment by his wife and prays for divorce and custody of their minor children, and the defendant answered denying the cruel treatment, and prayed for custody and temporary and permanent alimony, but she did not pray that the plaintiff's prayer for divorce be denied. After approximately two years in which the case was pending in court, she amended her answer and cross-action by alleging desertion from the date of the separation and prayed for divorce. The case proceeded to trial, and the jury returned a verdict granting both parties a divorce, support for the minor child, but denied alimony for the wife. She filed a motion for new trial, which was subsequently amended and denied. The exception is to this judgment.
There is a motion to dismiss the bill of exceptions for the reason that no bona fide attempt to brief the evidence has been made and there is no proper brief of evidence in the record. Our rulings will be on this motion and the assignments of error in the amended motion for new trial, except special ground 4, which has apparently been abandoned in that it has not been argued either orally or by brief.
1. The defendant in error has filed a motion to dismiss the writ of error, in which he alleges that the court should not consider any assignments of error requiring a consideration of the evidence because the brief of evidence contains immaterial matter. The law ( Code § 70-305 as amended, Ga. L. 1953, Nov.-Dec. Sess., p. 440) requires a bona fide effort to brief only the material evidence. This record, irrespective of immaterial matter in the brief, shows that the plaintiff in error made a bona fide effort to eliminate immaterial matter from the stenographic copy of the evidence, and that, due to the insistence of counsel for the defendant in error, and an order of the court sustaining his insistence, the brief is in its present condition. We will not penalize the plaintiff in error for obeying an order of the judge, by refusing to consider questions depending on the brief even if it contains immaterial matter. The motion is denied, and the brief will be considered.
2. The husband sued for divorce on the ground of cruel treatment, and the wife's cross-action prayed for a divorce on the ground of desertion. The verdict of the jury was: "We the jury find and grant total divorce for both parties." This verdict was authorized by the charge, and the charge so authorizing it is excepted to in the amended motion for a new trial.
Although there was evidence that would sustain the contention of each of the parties, it could not authorize the verdict, which is inconsistent. Dealing with a similar verdict in Hyndman v. Hyndman, 208 Ga. 797 ( 69 S.E.2d 859), at page 799, this court said: "It is perfectly obvious that, if the wife's separation was caused by the defendant's cruelty, which cruelty was enough to entitle her to a divorce on that grounds as found by the jury, then that separation could not possibly have been wilful and voluntary, which would be required in order to justify a verdict granting a divorce to the defendant. The harm in such erroneous charge is demonstrated by the fact that the jury returned a verdict precisely as directed by the charge." In the case just cited, we quoted from Anthony v. Anthony, 103 Ga. 250 ( 29 S.E. 923), as follows: "The meaning of the word `verdict' — `a true saying' — is set at naught and rendered ridiculous, as applied to the two findings with which we are now undertaking to deal. What `true saying' can be gathered from these two contradictory sayings? The situation brought about by these findings is anomalous, and can not be tolerated." We quoted as above, hoping to prevent a repetition of the error, but this case, disregarding what we said, repeats the error. All the objections to this charge and the general grounds must be sustained. See Anthony v. Anthony, 103 Ga. 250, supra; Hyde v. Hyde, 200 Ga. 635 ( 38 S.E.2d 287); Rogers v. Rogers, 202 Ga. 329 ( 43 S.E.2d 152).
3. Where, as here, both the plaintiff and the defendant charged the other with cruel treatment, and there was evidence to sustain each charge, it was reversible error to overrule the amended ground of the motion for new trial assigning error on the failure to charge without request in terms of Code § 30-109 that, if the jury found both parties guilty of cruel treatment, the jury should refuse a divorce to either of them. The exception in Teague v. Teague, 198 Ga. 239 ( 31 S.E.2d 409) was to a charge as provided in Code § 30-109, and it was held not error. Here failure so to charge is the complaint, and since the case cited is controlling to the effect that in this case, where like conduct was pleaded and proved, the provisions of Code § 30-109, to the effect that a divorce should be denied, were applicable. As repeatedly ruled by this court, it is error to fail without request to charge the jury on material issues made by the pleadings and the evidence. The court erred in failing to charge as contended.
Judgment reversed. All the Justices concur.