Watts v. Watts , 130 Ga. 683 ( 1908 )

Atkinson, J.

Mrs. Elizabeth Watts, a resident of Paulding county, filed her suit for divorce in the superior court of Paulding county against her husband, W. T. Watts, who at the time of filing the suit resided in Polk county, Ga. The defendant entered upon the original petition an acknowledgment as follows: “Due and legal service of the within petition for divorce and the process attached is hereby acknowledged. Copy waived and all other and. further service acknowledged, and I agree that the superior court of Paulding county have jurisdiction of the ease.” At the trial term of the court the first verdict was rendered in favor of the plaintiff. At a subsequent term of the court, when the ease was again on trial, the judge, upon his own motion, dismissed the case, on the ground that the superior court of Paulding county did. not have jurisdiction. Dpon that judgment the plaintiff assigned error.

In actions which are strictly personal, where the interests of third persons are not affected, a defendant may ordinarily waive the jurisdiction over his person, where the court has jurisdiction over the subject-matter. Civil Code, §§5079, 5080. Ansley Co. v. O'Byrne, 120 Ga. 618 (48 S. E. 228) ; Epps v. Buckmaster, 104 Ga. 698 (30 S. E. 959). The plaintiff in error contends that this rule applies to the ease at bar. To this contention we can not agree. A divorce suit affects not merely the formal parties before the court, but society at large. 9 Am. & Eng. Enc. L. (2d ed.) 728-9 (4). On account of the peculiar interest of the public in the preservation of domestic relations, provisions have been made by the constitution of this State, and by legislative enactment, which take divorce suits out of the rules that govern other actions, and place restrictions around them indicating a policy to hinder facility in the procurement of divorces. This has been true ever since the adoption of the constitution of 1798. In Head v. Head, 2 Ga. 191, 194, it was said: “It must be apparent to the most careless reader that the constitution of 1798 is in restraint of divorces; the wise framers of that instrument were careful to hinder facility in their procurement.” In our present code we find that the superior court alone has jurisdiction to grant divorces, and that a total divorce can not be granted by that court except upon the concurrent verdicts of two juries at different terms of the court. Civil Code, §§2425, 5867. Nor can a person obtain a divorce who has not been a bona fide resident of the State twelve months before the filing of the suit. Civil Code, §2431. Nor can a verdict or judgment by default be taken in a suit for divorce. The allegations of the petition must be established by evidence before the juries. Civil Code, §§2440, 5074. Again, “in divorce eases proceeding ex parte, it is the duty of the judge to see that the grounds are legal and sustained by proof, or to appoint the solicitor-general, or some other attorney of the court, to discharge that duty for him.” Civil Code, §2455. These and other laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Divorce suits affect not only the formal parties to the suit, but the entire social fabric as well. Therefore the provisions of the Civil Code, §§5079, 5080, which authorize parties in certain cases to waive jurisdiction, do not apply to a divorce suit. A party may ordinarily waive a right in so far as it affects himself, but not where the waiver might affect others. In fixing the venue for the trial of divorce suits, they were put in a class separate and distinct from all other suits, and it was provided, in article 6, section 16, paragraph 1, of the constitution of the State of Georgia (Civil Code, §5869), that “Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides.” This provision of the constitution is mandatory and exhaustive, and has no qualification which authorizes jurisdiction to be conferred, by consent or otherwise, elsewhere than as expressly provided in the excerpt which we have just quoted. This provision „of the constitution is in keeping with the general policy of the law already pointed out; and, in view of the welfare of society, there was' manifestly an intent to withhold from the parties to the suit, who were not solely to be affected, the power, by waiver, to confer jurisdiction upon courts in counties other than those provided for by the express terms of the constitution. The superior court-of Paulding county was without jurisdiction to render a valid judgment in this case, and it was proper for the judge, at any time while the suit was pending, to dismiss the same upon his own motion.

Judgment affirmed.

All the Justices concur.