MAY 8, 1943.
Divorce. Before Judge Almand. Fulton superior court. January 5, 1943.
H. W. McLarty, for plaintiff in error. W. F. Moore, contra.
1. Where a husband filed a suit for divorce against his wife on the ground of cruel treatment, and subsequently the marital relations were resumed on the strength of the wife's promise to desist from the acts of cruel treatment as alleged in the petition, and where on resumption of marital relations the wife did not desist from such cruel treatment and another separation took place, the act of the husband in resuming the marital relation did not amount to condonation of the wife's cruel treatment where she failed to fulfill the agreement by virtue of which the marital relations were resumed.
2. Where the defendant in a divorce action takes the position that a second divorce suit should be dismissed, because at the time it was filed there was another suit pending, and that defendant is entitled to have the second suit dismissed so that the original cause of action can be litigated; and where upon such motion of defendant the second suit is dismissed without the merits of the case being passed upon, such defendant will not be permitted thereafter to take the inconsistent position that the original suit should be dismissed.
No. 14502. MAY 8, 1943.
On December 13, 1938, Alden Bruce filed in Fulton superior court, against his wife Mrs. Maude King Bruce, a petition for divorce on the ground of cruel treatment. The defendant filed an answer. Subsequently the parties resumed their marital relations, without dismissing the above suit. On May 22, 1941, the husband filed a second suit for divorce, alleging acts of cruel treatment that occurred after the parties resumed their marital relations. The wife filed an answer in the nature of a cross-bill, asking that all the prayers of the petition be denied, and that she recover temporary and permanent alimony for herself and minor child. On March 24, 1942, the court sustained a motion of the wife, and dismissed the second suit for divorce, on the grounds that at the time it was filed another suit was pending in Fulton superior court by the plaintiff against the defendant, covering the same subject-matter, and that the defendant was entitled to have the second suit dismissed, so that the original cause of action might be litigated. So far as the record discloses, no exceptions were taken to any of the above rulings.
On March 30, 1942, the court allowed the husband to amend the original suit by alleging that his wife agreed to desist from the acts of cruel treatment which were alleged in the original petition, but the same acts of cruel treatment continued after the parties agreed to resume their marital relations. The wife interposed a "general demurrer and motion to dismiss" the original suit as amended, on the ground that such suit had been abandoned and all the conduct relied on therein had been condoned. The wife amended her motion to dismiss by alleging, (first) that the husband, having made an election when he filed the second suit, could not proceed upon a suit that he himself had treated as abandoned, and the conduct set forth therein had been completely condoned; and (second) that the allegations of the second suit showed conclusively that the original suit was abandoned, and that the cruel treatment alleged therein had been unconditionally condoned.
The exception is to an order overruling the wife's general demurrer and motion to dismiss the original suit as amended.
1. "Where a wife, after having separated from her husband because of his cruel treatment, brought a libel for divorce against him upon the grounds of cruel treatment and habitual drunkenness, but was induced by him, by his promise to reform and not again to be guilty of the acts and conduct relied upon as grounds for divorce, to return to him and resume marital relations, this would have constituted condonation and would have barred the right of the wife to proceed with the suit had the husband not violated the condition upon which the wife returned; but where he did violate that condition and was guilty of a repetition of acts of cruel treatment and drunkenness, the violation of the condition revived the cause of action; and where the wife immediately left her husband after a repetition of the acts of cruel treatment, she may press the suit to a conclusion and upon the trial thereof prove the cruel treatment and instances of intoxication prior to the bringing of the suit as well as those occurring afterwards." Harn v. Harn, 155 Ga. 502 ( 117 S.E. 383); see also Stanley v. Stanley, 178 Ga. 814 ( 174 S.E. 531); Duncan v. Duncan, 183 Ga. 570 ( 189 S.E. 18); Wood v. Wood, 179 Ga. 635 (2) ( 176 S.E. 483), and cit. Under the foregoing authority, there is not such condonation in the instant case as will prevent the plaintiff from proceeding with the original suit for divorce.
2. "No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former shall be a good defense to the latter, if commenced at different times." Code, § 3-601. "It is a well-recognized principle of law that when a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position." Hughes v. Field, 177 Ga. 128, 132 ( 169 S.E. 344), and cit.
The doctrine of election of remedies is not applicable to this case. The court, on motion of the defendant, having dismissed the second suit, the defendant can not now insist that the filing of the second suit, or the dismissal of same, was a voluntary abandonment by plaintiff of the original suit. Accordingly the court did not err in overruling defendant's general demurrer and motion to dismiss the original suit as amended, for any reason assigned.
Judgment affirmed. All the Justices concur.