Opinion
17047.
APRIL 10, 1950.
Equitable petition. Before Judge Pharr. Fulton Superior Court. January 20, 1950.
R. P. Johnston and Vester M. Ownby, for plaintiff in error.
Martin McFarland and Roger H. Bell, contra.
A person who is non compos mentis, though not legally adjudged to be an insane person, is incapable of being legally served with a petition for divorce; and a judgment in an uncontested divorce suit which is predicated upon such service may be set aside in a proceeding by a next friend. Code, §§ 110-709, 110-710; Perry v. Fletcher, 46 Ga. App. 450 (1) ( 167 S.E. 796); Henry Co. v. Johnson, 178 Ga. 541 (5c) ( 173 S.E. 659).
Judgment affirmed. All the Justices concur.
No. 17047. APRIL 10, 1950.
A petition in equity was filed in Fulton Superior Court by the wife through her next friend, on June 8, 1949, to set aside a judgment for divorce obtained by the husband. The petition alleged that the wife was insane at the time she was served and when the decree was granted. She prayed that the divorce decree be set aside and the husband be enjoined from disposing of his property. A demurrer to the petition was overruled, and the husband excepted.
The petition alleged that they were married April 15, 1944; that before and from January, 1946, she was non compos mentis; that within the past few months she learned of the divorce proceedings, which show that she was served with a copy thereof on February 16, 1946, and that a decree was granted by Fulton Superior Court on July 9, 1946. She also alleged that on the date of service, and on the date the decree was granted, she was insane; that she was adjudged insane and committed to the State Hospital at Milledgeville September 16, 1946, but no guardian for her was appointed; and that in December, 1946, she was released by the hospital authorities to her mother, but her mental condition got worse and she was returned to the hospital in November, 1947, and remained there until August, 1949, when she was again released to her mother. She further alleged that, when first committed to the hospital, her husband visited her there, but never told her of the divorce; and that, during the period when first released to her mother, her husband lived with her as man and wife and she gave birth to a baby on July 19, 1948, during all of which time she knew nothing of any divorce proceeding.