Bush v. Morris

123 Ga. App. 497 (1971)

181 S.E.2d 503

BUSH v. MORRIS et al.

45875.

Court of Appeals of Georgia.

Submitted January 5, 1971.

Decided March 4, 1971.

Rehearing Denied March 23, 1971.

Earl Bush, for appellant.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, for appellees.

PANNELL, Judge.

1. Where a district attorney represents a wife in a divorce action against a husband, contrary to the provision of Section 6 of Ga. L. 1968, pp. 992, 994 (Code Ann. § 24-2927) prohibiting district attorneys from engaging in the private practice of law, and the case is tried before the trial judge who has knowledge of the district attorney's disqualification, and upon the trial of the case the wife succeeds in securing a divorce from her husband, such action of the district attorney and the trial judge does not engender a cause of action in favor of the husband against the district attorney and the trial judge on the grounds that the action on their part constituted a "trespass on the marriage" of the husband.

2. Where a complaint fails to state a claim, the dismissal of such claim is not error even though the complainant has made demand for jury trial, and does not contravene the provisions of Section 38 of the Civil Practice Act (Ga. L. 1966, pp. 609, 652; Code Ann. § 81A-138) or Article VI, Section XVI, Paragraph I of the Constitution of the State of Georgia (Code Ann. § 2-5101), nor does such action contravene the provisions of Section 40 of the Civil Practice Act (Code Ann. § 81A-140), nor was it error because the complainant had pending a motion for summary judgment, nor does it deny the complainant the right to prosecute his cause in the courts of this State granted by Article I, Section I, Paragraph IV of the Constitution of this State (Code Ann. § 2-104). Any enumerations of error not covered *498 by this ruling are without merit.

Judgment affirmed. Bell, C. J., and Deen, J., concur.