1. Where a divorce decree is granted at the first term without an agreement therefor being entered on the docket, the mere filing within thirty days thereafter of a motion to set aside the decree, without any service thereof or reasonable notice to the opposite party, is insufficient to prevent the divorce decree from becoming final.
2. Under the facts of this case, and the law applicable thereto, the trial court erred in entering a judgment to the effect that the petitioners are the sole heirs at law of the deceased, and that the defendants have no interest in his estate.
Eddie Lee Gunder and Lillie Tyson Gunder, individually and as next friends of Donald Gunder, a minor, filed a petition in Coffee Superior Court against Annie Moore Johnson (Gunder), and Gloria Moore Johnson (Gunder), a minor, which alleged in substance the following: Lillie Tyson Gunder is the widow of Julius Gunder and the other petitioners are sons of herself and Julius Gunder, who died intestate on August 24, 1952, leaving the petitioners as his sole heirs at law. A contest is pending in the court of ordinary between the respective parties as to who is legally entitled to the estate of the deceased, and a receiver should be appointed to manage and disburse the estate, consisting of approximately $1,800 in cash, household furniture, and a house and lot. A multiplicity of suits will result unless a court of equity intervenes. The petitioners prayed among other things: that process issue; that the court appoint a guardian ad litem to represent the minor in this litigation; that the petitioners be decreed to be the only persons lawfully entitled to the estate; that a receiver be appointed; and that petitioners have general equitable relief.
The defendants filed an answer in the nature of a cross-petition, in which they denied the material allegations of the petition, and alleged: The defendant, Annie Moore Gunder, is the lawful widow of said deceased, and the other defendant is the minor daughter of herself and Julius Gunder, the defendants thus being his sole heirs at law. Applications by both Lillie Tyson Gunder and Annie Moore Gunder, seeking to be appointed administrators of the estate, are pending in the court of ordinary, together with an application for a year's support filed by Annie Moore Gunder on behalf of herself and the minor defendant. There is no necessity for a receivership; and, due to the age of the minor daughter, it is necessary that she and her mother have a place to reside. All the furniture in the home in which Annie Moore Gunder and her deceased husband lived was her individual property. The defendants prayed: that the prayer for a receiver be denied; that the defendants be decreed the only lawful persons entitled to the estate; that a guardian ad litem be appointed to represent the minor daughter; and that the defendants have general equitable relief.
The court appointed a receiver and guardians ad litem to represent the minor parties. Upon the call of the case for trial, counsel for the respective parties, in open court, entered into the following stipulation: "That on February 5, 1949, Julius Gunder and Lillie Tyson Gunder were legally married husband and wife, and of such marriage there were born two children, who are Eddie Lee Gunder and Donald Gunder; that at the March term, 1949, of the Superior Court of Coffee County, Georgia, there was obtained a divorce by Julius Gunder from Lillie Tyson Gunder dated March 14, 1949, and signed by the judge of this court providing that this decree be of full force and effect thirty days from that date; that no agreement to try the case at the first term was entered on the docket; that on April 11, 1949, within thirty days from the date of the divorce decree a motion was made to set aside the divorce decree; that said motion was filed by Lillie Mae Gunder, and the motion is tendered herewith and made a part of the record in this case; that Julius Gunder died on August 24, 1952; and that no action was ever taken by the court on the motion to set aside the verdict and decree. The divorce decree, and the motion to set aside the divorce decree were received in evidence.
The motion to set aside the divorce decree, which motion does not appear to have been served on the opposite party, was on the ground that "Said judgment was rendered at the first term in said matter, and that at no time did she [movant] sign an agreement for said cause to be tried at the first term."
After hearing evidence the trial count entered a judgment to the effect that the divorce decree never became final because the motion to set it aside was still pending when the death of Julius Gunder occurred, thus leaving the petitioners as his sole heirs at law, entitled to inherit his estate, and that the defendants have no interest in the estate. To this judgment the defendants excepted.
Under the present divorce statute (Ga. L. 1946, p. 90; Code, Ann., 30-101), a divorce decree will become of full force and effect at the expiration of 30 days after the rendition thereof, unless some person at interest shall file a motion setting forth good and sufficient grounds for the modification or setting aside of such decree. Code 110-707 declares: "All motions to arrest or set aside a judgment must be made to the court by whom such judgment was rendered, and of such motions the opposite party must have reasonable notice."
Julius Gunder married Lillie Tyson during the year 1918, and they lived as husband and wife until they separated on December 20, 1942. Julius Gunder was granted a total divorce from Lillie Tyson Gunder on March 14, 1949, and the divorce decree stated that the marriage contract was dissolved and both of said parties were at liberty to marry again. Thereafter, the exact date not appearing, the deceased married Annie Moore Johnson, and of such marriage a daughter was born. So far as appears from the record the deceased continued to live openly with Annie Moore Johnson as his wife, in the same county where he had formerly lived with Lillie Tyson without any protest being made by any person at interest, until his death which occurred on August 24, 1952. He died more than three years after obtaining the divorce without knowing that a motion had been filed to set it aside, so far as the record shows.
Irrespective of whether the motion to set aside set forth good and sufficient ground for setting aside the divorce decree--construing said divorce statute in connection with the general statute requiring reasonable notice to the opposite party where a motion is made to set aside a judgment, the mere filing of the motion to set aside the divorce decree, without any service thereof or reasonable notice to the opposite party, was insufficient to prevent the divorce decree from becoming of full force and effect.
It was held in Allison v. Allison, 204 Ga. 202, 204 (48 S. E. 2d 723), that a motion to set aside a verdict in a divorce case is the equivalent of a motion for new trial and must meet the requirements thereof in substance and form.
What has been said is in accord with the principle that, "where there is more than one marriage, the law presumes the last marriage to be valid; and the burden is upon the one attacking it to overcome this presumption by proving its invalidity." Longstreet v. Longstreet, 205 Ga. 255 (1)
(53 S. E. 2d 480); Griffin v. Welch, 210 Ga. 300 (2)
(79 S. E. 2d 527).
Under the facts of this case, and the law applicable thereto, Annie Moore Gunder and her child by Julius Gunder, and his two children by Lillie Tyson Gunder would be his heirs at law; and the trial court erred in entering a judgment to the effect that the petitioners are the sole heirs at law of the deceased, and that the defendants have no interest in his estate.
Judgment reversed. All the Justices concur.