Hobbs v. Hobbs , 158 Ga. 571 ( 1924 )

Eussell, C. J.

1. The discretion of the trial judge in refusing a continuance was not manifestly abused; and on a question of alimony pending a libel for divorce this court will not scan closely the ruling of the court upon a motion for a continuance of the hearing on account of the apparent inaccessibility of witnesses whose affidavits are desired. Champion v. Champion, 68 Ga. 835. Especially is this so where there are minor children whose rights to maintenance and support are unaffected by the conduct of the wife, and whose custody the father does not seek.

2. On the hearing of an application for temporary alimony and attorney’s fees and the expenses of the litigation, the trial judge may allow as counsel fees such amount as may seem proper under the facts and circumstances of the case, although there is no evidence before him fixing the value of the services rendered or to be rendered by the plaintiff’s counsel. Sweat v. Sweat, 123 Ga. 801 (51 S. E. 716); Carnes v. Carnes, 138 Ga. 1 (74 S. E. 785); Bennett v. Bennett, 157 Ga. 848 (122 S. E. 616).

3. The record fails to disclose any motion made by the defendant to revoke the restraining order and writ of ne exeat previously granted, and the trial judge did not err in continuing the same in force.

4. The judge was empowered to allow temporary alimony from the date of the separation to the date of the hearing. Killingsworth v. Killingsworth, 148 Ga. 590 (97 S. E. 539). The sum awarded was not excessive in amount. However, in view of the condition of the defendant’s property, he should not have been ordered to pay such amount within 15 days from the date of the order. The judgment of the lower court is affirmed, with direction that it be so modified in the lower court as to allow the defendant to pay the alimony accrued, to wit $533.33 in six equal monthly payments beginning with the date the judgment of the superior court is so modified as hereby directed.

5. The award of temporary alimony for the support of the plaintiff and her minor children was not unsupported by the evidence.

Judgment affirmed, with direction.

The other Justices concur, except Atkinson and Gilbert, JJ., who concur in the judgment of affirmance, but not in that part of the judgment giving direction to the trial judge. B. A. Moorej for plaintiff in error. 7. E. Bargeron and B. B. Ghasiain, contra.