
    Don v. Don.
    No. 4216.
    April 30, 1924.
    Divorce. Before Judge Meldrim. Chatham superior court. January 15, 1924.
    In a suit for divorce filed by Joseph Don against Mora McKenny . Don, after the first verdict, on December 6, 1923, was returned in favor of the plaintiff, the defendant filed a motion to vacate the same, setting up that it was obtained by fraud, misrepresentation, and deceit, and the wilful practice of deception by plaintiff upon his own attorney and upon the defendant and her attorney; that said plaintiff agreed and contracted with defendant “that he would pay her as permanent alimony on the final determination of said divorce proceedings the sum of $20.00 per month, payable on the 5th day of each month, beginning April 5th, 1924, and to continue throughout her unmarried life, and agreed that his said attorney . . should enter in writing such an agreement, to be made the final judgment of said court, and such agreement was made and accepted by said defendant and her attorney;” that plaintiff represented to defendant and her attorney that he would abide said agreement; that, acting upon and solely on account of this agreement, defendant made no contest of the issues, and did not appear at the trial of the case; that immediately after the rendition of the first verdict in his favor the plaintiff dismissed the attorney through whom he made the agreement mentioned, employed another, repudiated the agreement, and declared his intention not to pay any sum as permanent alimony. In support of the motion the defendant introduced the testimony of the attorney who had originally represented the plaintiff, to the effect that he consulted plaintiff upon the question of making the agreement mentioned, that plaintiff, was entirely willing; that it was understood the agreement should be reduced to writing and become final judgment; that the attorney for the defendant had stated to him that defendant’s only-concern in the divorce proceeding was that her rights be protected as to the judgment for alimo^, and that he so informed plaintiff; that neither the defendant nor her attorney was present at the trial, that plaintiff had repudiated the agreement, dismissed him, and employed another attorney. Also, the testimony of her own attorney, to the effect that the plaintiff personally stated to him that the terms of the agreement mentioned were satisfactory to him; that in consequence of the agreement he stated to the attorney for plaintiff that defendant would make no appearance at the trial; and that she did not. Error was assigned upon the judgment overruling the motion to vacate the verdict.
   Gilbert, J.

“A contract between husband and wife, made with the intention of promoting a dissolution of the marriage relation, is contrary to public policy and void.” Sumner v. Sumner, 121 Ga. 1 (3) (48 S. E. 727); Birch v. Anthony, 109 Ga. 349 (34 S. E. 561, 77 Am. St. R. 379). Under the facts of this case, where a suit brought by the husband against the wife was pending and the husband entered into an oral agreement to pay a stipulated sum monthly, the same to be made the final judgment of the court, and where there was evidence tending to show that it was a part of the agreement that the defendant would make no appearance at the trial, such a contract was void under the principle ruled above. It follows that where such contract was repudiated by the plaintiff, and thereafter the divorce case proceeded to trial and the first verdict was returned for the plaintiff, the court did not err in refusing to set aside the verdict and judgment bn the ground that the same was procured by fraud and misrepresentation consisting of a breach of the aforesaid contract.

Judgment affirmed.

All the Justices concur.

Don. H. Ciarle, for plaintiff in error.

Charles G. Edwards, contra.  