Cross v. Cross

230 Ga. 91 (1973)

195 S.E.2d 439

CROSS v. CROSS.

27563.

Supreme Court of Georgia.

Submitted November 15, 1972.

Decided January 23, 1973.

James L. Mayson, John D. Jelkes, for appellant.

HAWES, Justice.

"When a divorce shall be granted, the jury or the judge, as the case may be, shall determine the rights and disabilities of the parties: Provided, however, that no person shall be placed under disability unless there is in the pleadings a special prayer that he be placed under such disabilities." Ga. L. 1946, pp. 90, 93; 1960, pp. 1024, 1025 (Code Ann. § 30-122). A judgment in a divorce proceeding which prohibits the remarriage of the defendant where there was no prayer in the original complaint for such relief and where defendant therein has not filed defensive pleadings nor personally or by attorney appeared in court to defend, is not merely erroneous but is utterly void, since, under the provisions of the foregoing law, the trial court in those circumstances acquires no jurisdiction to enter such a judgment. The provisions of the Civil Practice Act respecting the amendment of pleadings by the introduction of evidence and the grant of relief in accordance with such evidence have no application in cases "where the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief." Ga. L. 1966, pp. 609, 658; Code Ann. § 81A-154 (c). It follows that the judgment denying the defendant's motion to vacate and set aside the portion of the divorce decree which forbade his remarriage was erroneous and must *92 be reversed. Duncan v. Duncan, 226 Ga. 605 (176 SE2d 88); Motes v. Motes, 229 Ga. 429 (193 SE2d 885).

Judgment reversed. All the Justice concur.