Opinion
24305.
ARGUED SEPTEMBER 13, 1967.
DECIDED SEPTEMBER 21, 1967.
Action to set aside divorce decree. Chatham Superior Court. Before Judge Heery.
Alton D. Kitchins, for appellant.
Usher Haupt, Reginald C. Haupt, for appellee.
A petitioner is estopped to invoke the aid of a court of equity to set aside a divorce decree on the contention that the jurisdictional averments of the divorce petition were false, where the petitioner in the equitable action (the defendant in the divorce action) on the day prior to the filing of the divorce petition entered into an agreement in contemplation of the action, acknowledged service of the petition, waived trial by jury, and agreed that the case be heard at the earliest time permitted by law; and, after learning of the pendency of the divorce action, made no effort to contest the truth of the jurisdictional averments, no fraud being practiced on him to prevent him from resisting the divorce action. Fuller v. Curry, 162 Ga. 293 ( 133 S.E. 244); Hardin v. Hardin, 218 Ga. 39 ( 126 S.E.2d 216).
Judgment affirmed. All the Justices concur.
ARGUED SEPTEMBER 13, 1967 — DECIDED SEPTEMBER 21, 1967.
David Hugh Riley, Jr., the appellant in this court, brought a petition in equity seeking to declare null and void a decree of divorce obtained against him by Mary Alice Lamar Riley. He subsequently filed pleadings seeking to restrain garnishment and other proceedings to enforce delinquent child support payments awarded in the decree. A plea of estoppel was sustained, and he assigns error on the refusal to grant a restraining order, and the sustaining of the plea of estoppel.
The petition for divorce by the appellee alleged that she had been a resident of Georgia for more than six months next preceding the filing of the petition, and that the appellant is subject to the jurisdiction of the court. The appellant's petition to set aside the divorce decree is based on the contention that the appellee had not been a resident of the state for six months next preceding the filing of the petition, and that the court, therefore, acquired no jurisdiction of the divorce action.