Huley v. Huley , 154 Ga. 321 ( 1922 )

Per Curiam.

1. A wife cannot maintain against her husband who is a minor, without a guardian ad litem, although of sufficient age to contract marriage under the statute, a proceeding under the Civil Code (1910), § 2986, providing for the allowance of alimony to the wife where she and her husband are living separate, or are bona fide in a state of separation, and where no suit for divorce 'is pending. Groce v. Field, 13 Ga. 24; Nicholson v. Wilborn, 13 Ga. 467; Oliver v. McDuffie, 28 Ga. 522; Jack v. Davis, 29 Ga. 219; Hill v. Printup, 48 Ga. 453; Kilpatrick v. Strozier, 67 Ga. 247; Harvey v. Cubbedge, 75 Ga. 792; Welch v. Agar, 84 Ga. 583 (11 S. E. 149, 20 Am. St. R. 380); Burnett v. Summerlin, 110 Ga. 349 (35 S. E. 655); Maryland Casualty Co. v. Lanham, 124 Ga. 859 (53 S. E. 395); Douglas v. Johnson, 130 Ga. 472 (60 S. E. 1041); Miller v. Luckey, 132 Ga. 581 (64 S. E. 658); Thomas v. Thomas, 145 Ga. 111 (88 S. E. 584); Spooner v. Spooner, 148 Ga. 612 (97 S. E. 670); 22 Cyc. 627, 633, 634; 14 R. C. L. 49, 52, 54.

2. “ An action for or against an infant should be prosecuted or defended in their own name, and they should in all eases appear by guardian.” Nicholson v. Wilborn, Oliver v. McDuffie, Jack v. Davis, Thomas v. Thomas, Spooner v. Spooner, supra. See dissenting opinion by two Justices in Bentley v. Bentley, 149 Ga. 707 (102 S. E. 21, 17 A. L. R. 896). In Besore v. Besore, 49 Ga. 378, it was held that an infant married woman who is of statutory marriageable age may maintain an action for divorce; and in Bentley v. Bentley, supra, it was held that a suit for divorce could be maintained against an infant husband who was of statutory marriageable age. If these decisions are irreconcilable with those formerly made in the cases above cited, then the older cases must prevail.

No. 2769. September 30, 1922. Frank H. Harris, for plaintiff in error. Robert W. Durden and Henry O. Farr, contra.

Judgment reversed.

All the Justices concur, except Beck, P. J., and Hill, J., dissenting.

Beck, P. J.

Considering the relation of the parties, the rights of the wife in the property of the husband upon separation or the granting of a divorce, and the responsibilities which the law permits minors to assume in contracting marriage, and the status which the parties have when such relationship is established, this proceeding could be maintained against the husband without the appointment of a guardian ad litem. I do not think that the eases cited by the majority of the court are controlling.