Opinion
15171.
JULY 3, 1945. ADHERED TO ON REHEARING JULY 23, 1945.
Alimony. Before Judge Walter Thomas. Ware superior court. March 2, 1945.
A. B. Spence and E. O. Blalock, for plaintiff in error.
W. Orrin Lea, contra.
1. "`A brief of evidence is essential to the validity of any motion for new trial;' and this is true even though `the only ground of the motion . . insisted upon [does] not require a consideration of any of the evidence introduced on the trial.'" Dollar v. Fred W. Amend Co., 186 Ga. 717 ( 198 S.E. 753).
2. In accordance with the foregoing ruling, the present motion, styled by the movant as a motion in arrest of judgment, can not be treated as a motion for new trial, as was done by the presiding judge and a new trial granted, even though it should be assumed, as contended, that, since the verdict for divorce was unexcepted to and only the finding for alimony complained of ( Boone v. Boone, 192 Ga. 579, 15 S.E.2d 868; Deck v. Deck, 195 Ga. 404 (4 a), 407, 24 S.E.2d 303), the wife would be barred from any future attempt to obtain alimony. While it is true that the bill of exceptions states that, "in the trial of said case neither plaintiff nor defendant introduced any evidence as to the value of defendant's property," there was a conflict in the pleadings as to what his property consisted of, and the jury could have considered the respective conduct of the parties in determining the amount of alimony. Accordingly, the motion is defective at least for the reason indicated as a motion for new trial, and can not properly be treated as such.
3. Under the facts disclosed by the record the verdict in favor of the plaintiff for alimony was in part void on its face, since, in allowing alimony for the plaintiff in the amount of one half of the value of the defendant's property, it sought to delegate part of the jury's function to a commission to be appointed by the judge to ascertain the value thereof; but, since it did find that the plaintiff was entitled to one half of the value of the defendant's property, and since the defendant has solemnly admitted in his pleadings that he owned specified property of the value of $2256.25, the verdict will be treated as valid to the extent of one half of the value of the property thus specified by the defendant himself.
4. Where the jury provides permanent alimony for the wife in an amount capable of exact determination, a provision in the verdict that it be discharged by designated weekly payments does not prevent the court by its decree from providing a lien for the protection of such judgment.
5. In view of the foregoing rulings, the court erred in treating the motion in arrest of judgment as a motion for new trial and in ordering that the verdict be set aside and a new trial granted; and direction is given that the motion in arrest of judgment be denied, and that the plaintiff write off from the amount thereof the sum of $121.88, so that it will stand in favor of the plaintiff in the amount of $1128.12, representing one half of the value of the defendant's property as admitted by his plea and answer.
No. 15171. JULY 3, 1945. ADHERED TO ON REHEARING JULY 23, 1945.
A wife sued her husband for divorce and alimony. The divorce was granted and the disabilities of the husband were removed. To this finding and the decree of divorce based thereon no exception was taken. The jury by its verdict also undertook to find in favor of the wife for alimony in the following language: "We further find alimony in favor of the plaintiff in the sum of one half the value of defendant's property, said property to be appraised by three persons appointed by the judge of this court, and to be paid to the plaintiff in instalments of $5 per week until the sum paid equals the amount of one half the value of the property as found by the appraisers." The record, without showing or disproving any intervening action taken by the judge between the date of such verdict and the date of the judgment rendered by the court, discloses the following judgment: "Ordered further that the defendant pay to the plaintiff as permanent alimony, the sum of twelve hundred and fifty dollars as being one half of the value of the defendant's property, the said amount to be paid in instalments of five dollars per week and shall be a lien against defendant's property until the full amount of this judgment has been paid." The defendant, by what he styles a motion in arrest of judgment, seeks to set it aside as void on its face in that the jury was unauthorized to delegate its function as trier of facts, to others. The court treated the self-styled motion in arrest of judgment as in effect a motion for new trial, set its judgment as to alimony aside, and ordered that the case be retried on that question alone.
Only the question relative to the validity of the lien as set up by the decree, and dealt with in the fourth division of the syllabus, would seem to require elaboration. The verdict of the jury in finding permanent alimony for the wife in a fixed and ascertainable sum, payable $5 per week, did not by its terms provide for the establishment of a lien. The decree in entering a judgment thereon stipulated that the designated amount "be paid in instalments of five dollars per week," and expressly provided that such recovery "shall be a lien against the defendant's property until the full amount of this judgment has been paid." The husband complains of the provision setting up a lien, and assigns error "because that part of said judgment sought to be arrested sets up a lien against defendant's property, while the verdict of the jury upon which same is based did not set up any lien on defendant's property, nor specify any disposition to be made of defendant's property." "All judgments obtained in the superior, justices', or other courts of this State, shall be of equal dignity, and shall bind all the property of the defendant, both real and personal, from the date of such judgment, except as otherwise provided in this Code." Code, § 110-507. As against the rights of third parties acting in good faith, no judgment lien is binding against the property of a defendant located in the county where the judgment is obtained, after ten days from the date of its rendition unless it be entered in the general execution docket as provided by the Code, §§ 39-701 et seq.; but nothing as there provided "shall be construed to effect the validity or force of any deed, or mortgage, or judgment, or other lien of any kind, as between the parties thereto." § 39-704. It is not necessary that the verdict of a jury shall provide for the establishment of a lien to follow the judgment; since the lien follows a money judgment for an amount certain as a matter of law; and this applies to a judgment for alimony. "Of course a money judgment for alimony (in a certain sum) like the one in the present case, based upon a final verdict of a jury in a divorce suit, would give the plaintiff a judgment lien against any property which the defendant might own at the date of the judgment." Landis v. Sanner, 146 Ga. 606 ( 91 S.E. 688). As to whether the verdict and judgment in the instant case should be treated as a money judgment for a sum certain, it is plain that the rendering of such a judgment is within the power of the jury. Wise v. Wise, 156 Ga. 459 (2) ( 119 S.E. 410). Where the verdict, and the judgment following it, is not a money verdict for a sum certain, but for an uncertain sum based on weekly or monthly allowances to be terminated by the remarriage or death of the wife, and where no lien is expressly created by the judgment, a different rule has been applied. Chero-Cola Co. v. May, 169 Ga. 273 ( 149 S.E. 895, 66 A.L.R. 1469). It might well be questioned whether a judgment expressly setting up a lien could thus aid a verdict which did not in and of itself so require. This question will not be here adjudicated, since it is our opinion that the verdict rendered in this case was in effect a money judgment for a sum certain. The two divided-bench rulings which might be taken as at least inferentially holding otherwise ( Buffington v. Cook, 147 Ga. 681, 95 S.E. 214, and White v. Murden, 190 Ga. 536, 9 S.E.2d 745), this court has already questioned and refused to follow in Brown v. Farkas, 195 Ga. 653 (3, 4) ( 25 S.E.2d 411). Since in the instant case the amount fixed by the jury was not primarily an instalment verdict, but was in effect an award in a fixed and certain sum, it follows as a matter of law that the wife was entitled to the lien as provided by law. The execution, when issued, should, of course, follow the judgment, and its timely entry as provided by law would preserve the lien of the judgment payable in instalments, as against innocent purchasers, even though under such execution the sheriff would not be authorized immediately to levy the whole debt, but only the amount that has accrued. (See, in this connection, 33 C. J. S. 216, § 75; 23 C. J. 408, § 184, and citations.)
Judgment reversed, with direction. Bell, C. J., Duckworth, Atkinson, and Wyatt, JJ., concur.