TAYLOR v. TAYLOR., 212 Ga. 637, 94 S.E.2.d 744 (1956)

Supreme Court of Georgia

Status: SUBMITTED

Docket Number: 19365

Parts: MOBLEY, Justice.

Linked as:

Summary

Affirmed. All the Justices concur.

Summary

Affirmed. All the Justices concur.

Text

On July 8, 1954, Fred Taylor brought his petition for divorce against Margery Badger Taylor. The parties were married in April, 1949. On August 26, 1954, the defendant filed an answer and cross-action, which she twice amended, praying that she be awarded a divorce and permanent alimony. On December 8, 1955, a jury returned a verdict awarding the defendant a divorce and permanent alimony. In due course, the plaintiff filed a petition to modify and set aside the verdict and judgment, to which petition the defendant filed general and special demurrers. The trial court passed an order sustaining some of the demurrers and overruling others, and thereafter sustained the motion to modify and set aside the verdict and judgment and granted the plaintiff a new trial. To the judgments overruling her demurrers and sustaining the motion to modify and set aside and granting the plaintiff a new trial, the defendant excepts. Held:

1. Paragraph 8 of the plaintiff's petition to modify and set aside the verdict and judgment alleges that the judgment does not follow the verdict, in that the jury awarded to Mrs. Taylor the equity in the house and lot located at 750 E. Paces Ferry Road, while the judgment awarded her, in addition thereto, lots 28 and 29 of block E. in the Peachtree Highland subdivision, it being contended that said lots 28 and 29 are not a part of the house and lot known as 750 E. Paces Ferry Road. In her amended answer and cross-action, Mrs. Taylor prayed that she be awarded possession and fee-simple title to the real estate located at 750 E. Paces Ferry Road together with all vacant land appurtenant thereto, said real estate being located in land lot 46 of the 17th district of Fulton County. That part of the verdict was, "We the jury grant the equity in house & lot locate at 750 E. Paces Rd., Atlanta, Ga.," to Mrs. Taylor. A judgment must conform to the verdict (Code 110-301); and likewise it must follow the true meaning and intent of the finding of the jury. Manget-Brannon Co. v. White Crown Fruit Jar Co., 211 Ga. 878, 879 (89 S. E. 2d 516), to the effect that, in passing upon a motion to modify and set aside, the trial judge can not exercise the broad discretion he has in passing upon motions for new trial, is obiter dictum, as the court held that the petition failed to set forth good and sufficient grounds for the modification or setting aside of the judgment, and should have been dismissed on general demurrer. That being true, the question of the exercise of discretion by the trial judge was not reached in that case.

After a careful review of the record in this case, we are of the opinion that the grant of the new trial in this case was not an abuse of the discretion of the trial court, and the judgment is

Matthews & McClelland, for plaintiff in error.

1956