Byrd v. Wells , 191 Ga. 265 ( 1940 )

On the trial of a suit for injunction against interference with the plaintiff's possession of realty as sole heir of a decedent, by the defendant, who was alleged to be a divorced wife of the decedent, it was not error to admit in evidence the divorce proceedings, over objection that legal service of the defendant in the divorce suit by publication was not shown.

2. In view of the conflict of evidence as to residence of the parties to the divorce action, the discretion of the judge in granting a temporary injunction will not be disturbed.

No. 13398. NOVEMBER 29, 1940. Solomon Byrd of Fulton County, Georgia, was married three times. The first wife (by whom he had a daughter Lillian) died. In an action commenced in the superior court of Fulton County on August 2, 1918, a decree of total divorce was rendered on July 31, 1919, against Irene, the second wife. The third wife was also divorced. The daughter Lillian married Wells, and became a resident of North Dakota. The second wife, Irene, became a resident of Cook County, Illinois. While these persons were so residing, Solomon Byrd died intestate on February 12, 1936, leaving an estate consisting of described realty in Fulton County. The daughter Lillian Wells as sole heir at law of Solomon Byrd, acting through her tenants, entered possession. The second wife Irene Byrd, notwithstanding the decree of divorce, alleging herself to be the widow of Solomon Byrd, applied, on November 15, 1930, to the court of ordinary for a statutory year's support. In pursuance of such application the described realty was set apart to her as widow. In virtue of such allowance of a year's support, acting through her attorney, the said Irene proceeded to demand payment of rent from the tenants. On account of such demand Lillian Wells, claiming as sole heir at law of Solomon Byrd, instituted an equitable action in Fulton superior court against Irene Byrd, seeking to enjoin all interference with her rights in the property, and to have a decree declaring void the year's support allowance, and to have it canceled as a cloud upon her title. The alleged grounds of relief were, that the defendant was not the widow of the deceased; that the application for a year's support was false and fraudulent and the return thereon was obtained by fraud, in that Irene was not the widow, but on the contrary had been divorced from Solomon Byrd, as of record in the superior court of Fulton County, which fact the applicant well knew at the time of filing her application for a year's support. In reply the defendant denied the allegations that she had been divorced and was not the widow of the deceased. After introduction of evidence by both parties at interlocutory hearing, the judge granted a temporary injunction. The defendant excepted. 1. In a suit for divorce it was alleged that "the defendant resides out of the State of Georgia, and her last known place of abode was Chicago, in the County of Cook, State of Illinois" and there was a prayer for service by publication. Upon this petition the judge ordered service by publication, "and that citation issue in due form of law and publication be had, citing the defendant" to be and appear at the term of court to which the suit was returnable. After sufficient time had elapsed for the prescribed publication and before the term, the judge passed another order: "It appearing that citation was issued and that the same was published twice a month for two months prior to the November term 1918, of this court, in manner and form as provided by law, and that a copy of said citation was mailed to the defendant, Irene Byrd, at her last known place of abode, to wit, Chicago, in the County of Cook, State of Illinois, it is considered, ordered, and adjudged that service of process be and the same is hereby declared perfected by publication." At the foot of the order are the words: "OK J. C. Lewis, D.C."Held, that the recitals of the last order are presumed to be true, and are sufficient to show compliance by the clerk with the law as relates to the matters mentioned in the order; and there was no error at the interlocutory hearing in admitting the divorce proceedings in evidence, over the objection "that it did not show jurisdiction in the court to grant the same, because it did not show jurisdiction to pass the order . . declaring service perfected, because there was no record of any entry by the clerk on the petition or other writ that he had mailed a marked copy of the published notice to the defendant at her last known address, . . and that in the absence of such entry the record itself failed to disclose jurisdiction to pass the order declaring service perfected and that a marked copy had been mailed as required by law."

2. The defendant introduced her own affidavit, affirming that at the time of institution of the divorce suit she was not a resident of Cook County, Illinois, as alleged in the petition, but was a resident of Fulton County, and known to be such by Solomon Byrd at the time he instituted the suit for divorce. A witness for the plaintiff testified that defendant "left Solomon Byrd (libelant), and did not thereafter live with him: . . that after the separation of Irene Henry Byrd from Solomon Byrd, the said Irene Henry Byrd left Atlanta and went to Chicago, Illinois, where she made her home." Held that in view of this conflict in the evidence the discretion of the judge in granting a temporary injunction will not be disturbed.

Judgment affirmed. All the Justices concur.