Dugas v. Dugas , 201 Ga. 190 ( 1946 )

Viewing the act in its entirety, it seems to the writer that it was the intent of the legislature, where a defense is filed or a jury trial demanded, to require a verdict of the jury, the judgment based upon which would be final; but where no defense is filed or jury trial demanded, the judge would determine the issues and render a judgment, its finality being held in abeyance for 30 days. And if a petition to modify or set aside the judgment, so rendered by the judge without a jury, is filed within 30 days, the judge would still decide the case, unless a jury trial is demanded; and the judgment rendered in that event, whether based on a jury verdict or a judgment by the judge, would be a final judgment.

In section 1 of this act (Ga. L. 1946, p. 90) — after stating, "Divorces, how granted. Total divorces in proper cases may be granted by the Superior Court" — the next sentence is, "Unless an issuable defense is filed, or a jury trial demanded in writing by either party on or before the call of the case for trial, the judge shall hear and determine all issues of law and fact." It is therefore mandatory for the judge to pass upon the case unless a defense is filed or jury trial demanded; but where such defense or demand is made, it is clear that the right of trial by jury is preserved. The 30-day period, during which time the judgment is held in abeyance, applies only where no defense is filed or jury trial is demanded, as the section of the act relating thereto must be construed as excepting from this period cases where a defense is filed or jury trial demanded.

Accordingly, where a defense is filed or jury trial demanded, the judgment would become final at the time it is granted, and either party could proceed by motion for new trial in the same manner as they formerly could upon either first or second verdict.

While it is true that in the latter part of this section, which relates to the 30-day period in cases where no defense is filed or jury trial demanded, the expression "verdict or judgment" is used four different times, and while the use of the word "verdict" would seem to indicate that the 30-day period is applicable to cases which have been submitted to a jury, I do not so construe the act. In considering the act as excepting from the 30-day period cases where a defense is filed or a jury trial demanded, and also taking into consideration the use of the word "verdict" in connection with the word "judgment," some inconsistency appears. Accordingly, in construing the statute we must look to the intent of the legislature, keeping in view the old law, the evil, and the remedy. Barnett v. Pulliam, 77 Ga. 552 (2). The general scheme and purpose of the legislature is a proper criterion for construction, and where an ambiguity exists, by reason of conflicts between different clauses, courts should look beyond the verbiage even though some verbiage may have to be eliminated.Carroll v. Ragsdale, 192 Ga. 118 (15 S.E.2d 210).

The paragraph in question is prefixed with the statement, "unless an issuable defense is filed, or a jury trial demanded, . . the judge shall hear and determine all issues of law and fact;" and what follows thereafter necessarily relates to cases where the issues are submitted to the judge. And the mere fact that the word "verdict" is thereafter used along with the word "judgment" is not sufficient to negative and nullify the express statement at the beginning of the section, which excepts from the terms of the section cases where an "issuable defense is filed, or a jury trial demanded." As between a construction which would eliminate from the terms of the statute the phrase, "unless an issuable defense is filed, or a jury trial demanded," or else the word "verdict," the better interpretation would be to give effect to the above-stated clause upon which the whole section is predicated, and to treat the word "verdict" as being inadvertently used in connection with the word "judgment."

It is presumed that this act was passed with full knowledge of the existing law, and as a part of a uniform system of jurisprudence; and the act must be construed with reference to the whole system of which it forms a part, so that its provisions will not impair the operation of other laws which it is not reasonable to suppose the legislature intended to repeal.McDougald v. Dougherty, 14 Ga. 674 (5); Botts v.Southeastern Pipe-Line Co., 190 Ga. 689, 701 (10 S.E.2d 375); Mills v. Scott, 99 U.S. 25 (25 L. ed. 294).

To construe the act so as to require a judgment, which is based upon a contested case and a jury verdict, to remain in abeyance for 30 days with the right of the losing party, by his own election and as a matter of right, to require two verdict, would be an innovation under our system of jurisprudence. Under such a procedure, the first jury verdict, whether for divorce, or divorce and alimony, would have no force and effect unless it was satisfactory to the losing party, because, if dissatisfied, the losing party within 30 days could arrest and set aside that verdict and judgment by merely filing a petition setting forth some grounds therefor, of which the jury would judge the sufficiency, and demanding another jury trial, the effect being that the first jury trial would be nothing more than a sham battle. To so interpret the act, and thus to treat a judgment predicated upon a jury verdict, would amount to nullifying the Code, § 110-701 et seq., relating to the arrest and setting aside of judgments; and this can not be done because the act does not repeal or amend these sections either expressly or by implication. On the other hand, construing the 30-day abeyance period as applying only to judgments rendered by the judge, it would be in harmony with the existing rules of law, allowing a judge to set aside his own judgments during the term in which they are rendered, the only change in this rule being that the right so to do is fixed at a term of 30 days, irrespective of whether it is during the same term, or after the close of the term.

The Code, § 30-101, which required two verdicts is expressly repealed, and nowhere in the other portions of the act is found any expression indicative of an intent, under any circumstances, now to require two verdicts, or to permit the losing party to elect to do so. Considering the act as a whole, it is clear that its primary purpose was to eliminate the necessity of two verdicts, and this intent overshadows any inconsistency or confusion as to verbiage and must be given force and effect.