Smith v. Smith , 136 Ga. 531 ( 1911 )

Beck, J.

This case, which in its inception was a suit for alimony, was converted by the amendment filed at the trial term into a complaint upon account. No objection to the filing of the amendment on-the ground that it was a new cause of action seems to have been interposed. Under the testimony of the plaintiff and the written agreement signed by Mrs. Smith, which was attached to her declaration, it must have become apparent that the suit could not be maintained for the allowance of alimony for herself. She had expressly, before the institution of this suit, relinquished, for a consideration, all claims of herself “against him [her husband] or his property now and forever;” but she contends that she should be allowed to recover on the account sued on for necessaries furnished the minor children whom she took, and who were to remain with her under the agreement above referred to. We are of the opinion that when the amendment to the petition is considered in the light of the writing by which Mrs. Smith • relinquished all claims against her husband and his property, and which is attached as an exhibit to the declaration in this case, the court rightly concluded that the suit as it stood after the amendment was that of a wife against her husband for the board and maintenance of their minor children, and for articles of necessity furnished them by his wife; and that being the case, she was not entitled to -recover under the pleadings and evidence in this case. A wife can not separate from her husband or live in a state of separation from him, take charge of the minor children, and maintain a suit against the husband for necessaries furnished them. If the husband had made no adequate provision for the support and maintenance of the children, and a stranger had furnished them the- necessaries of life, he could maintain a suit against the delinquent father for the cost and value of the necessaries furnished; or 'a divorced wife, after dissolution of the bond of marriage between herself and husband, where no provision had been made for the support of her minor children, might, just as a stranger (for after divorce she would be a stranger), maintain an action against her former husband- for necessary expenses incurred in maintaining and nourishing their minor children. Brown v. Brown, 132 Ga. 712 (64 S. E. 1092, 131 Am. St. R. 229). But she can not while still a wife, though her husband be delinquent in the matter of furnishing his minor children with the means of sustenance, voluntarily undertake their care and nurture and then from time to time sue the husband for the amount of money expended in that behalf. We think the provision made in our laws for alimony, temporary and permanent, affords a comprehensive scheme by which the liabilities of the husband for the support of the wife from whom he has separated, and their minor children, may be fixed, and that relatively to the wife this scheme of the law is an exclusive one, whatever might still be the rights of the children to compel the father to furnish means of support, or the rights of a stranger who has furnished to the minor children the necessaries of life. .

Judgment affirmed.

All the Justices concur.