FEBRUARY 16, 1950.
Alimony, etc. Before Judge Brooke. Cobb Superior Court. November 16, 1949.
H. C. Schroeder and George D. Anderson, for plaintiff.
Luther C. Hames, Jr., for defendant.
1. A court may on its own motion, or for cause shown, modify its judgment during the term at which it was rendered.
2. On a motion to set aside a judgment, where the illegal provisions can be separated from those which are legal, the illegal part may be set aside and the legal part allowed to stand.
3. In an action for divorce, where the prayers of the wife for alimony for the support of herself are dependent upon and incidental to her prayers for a divorce, and where on the trial the jury denies a divorce, a judgment awarding alimony for the support of the wife, based upon such verdict, was void, and it was not error for the court, on motion of the defendant, to set aside so much of the judgment as awarded the wife alimony for the support of herself.
4. The provisions of Code § 30-101, as amended by the act of 1946 (Ga. L. 1946, pp. 90-91), as to filing a motion to modify or set aside a judgment, apply only in cases where a divorce is granted.
No. 16969. FEBRUARY 16, 1950.
Mrs. Mary Elizabeth Davis filed her suit against Tom Davis Jr., and prayed for the grant of a total divorce, and for permanent alimony for the support of herself and a minor child. On the trial of the case, the jury refused to grant a divorce to either party, but awarded a specific sum of money to be paid monthly by the husband as alimony for the support of the plaintiff and the minor child. A decree was entered on January 19, 1949, in accordance with the verdict. On March 19, 1949, during the term at which the decree was entered, the defendant filed a motion to set aside the judgment on the grounds, (a) that the judgment for alimony for the support of the plaintiff and minor child was unauthorized because the jury denied a divorce to both parties; and (b) that the jury returning the verdict on which the award was based had not been qualified as provided by law. On this motion the court entered a rule nisi, and on the hearing the plaintiff interposed a demurrer upon the grounds, (a) the motion to set aside the judgment was not filed within 30 days from the date of the judgment; and (b) no motion for a new trial was filed within 30 days from the date of the judgment. The demurrer being overruled, exceptions pendente lite were entered, and the court thereupon entered an order modifying the decree by striking therefrom the award of monthly alimony for the support of the wife, on the ground that the jury having denied both parties a divorce, and the plaintiff's prayer for herself being incidental to her prayer for divorce, the award of alimony for her support was improper and void.
2. A judgment may be set aside "for any defect not amendable which appears on the face of the record or pleadings." Code § 110-702. Where the illegal provisions of a judgment can be separated from those which are legal, those parts which are illegal may be set aside and the legal provisions allowed to stand. Chicago Building Manufacturing Co. v. Butler, 139 Ga. 816 (1) ( 78 S.E. 244).
3. In the trial of a divorce action, where the prayers of the wife for alimony for the support of herself are incidental to her prayers for a divorce the denial of a divorce by the jury leaves no basis upon which the jury could award alimony for the support of the wife and the judgment of the court awarding alimony for her support based upon such verdict is without legal force or effect. Compare Stoner v. Stoner, 134 Ga. 368 (4) ( 67 S.E. 1030); Brightwell v. Brightwell, 161 Ga. 89 (2) ( 128 S.E. 658); Meadows v. Meadows, 161 Ga. 90 (2) ( 129 S.E. 659); Mullally v. Mullally, 199 Ga. 708 (3) ( 35 S.E.2d 199,
4. The provision of Code § 30-101 as amended by the act of 1946 (Ga. L. 1946, pp. 90, 91, Code, Ann. Supp., § 30-101), as to filing a motion to modify or set aside a judgment for a divorce and alimony within thirty days from the date of such verdict or judgment, applies only in cases where a divorce is granted. Huguley v. Huguley, 204 Ga. 692 (2) ( 51 S.E.2d 445). There was no error in overruling the demurrer of the defendant to the motion to set aside the judgment, nor in modifying the judgment.
Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents, and Atkinson, P. J., who dissents from the 4th division of the opinion. Hawkins, J., disqualified.