
    Fain v. Fain.
    No. 6599.
    June 12, 1928.
    Alimony, etc. Before Judge E. D, Thomas. Fulton superior court. March 27, 1928. Mrs. Ruby B. Fain filed suit for alimony and attorney’s fees against her husband, G-. C. Fain, on September 8, 1926. The defendant filed no answer and made no appearance, and on March 26, 1928, a jury returned a verdict for plaintiff, awarding $60 a month permanent alimony, upon which the court entered judgment. On March 27, 1928, the court passed an order setting aside said verdict and judgment as having been improvidently granted. To this judgment the plaintiff excepted on the ground that it was contrary to law and the evidence, and upon the further ground that “there is no legal discretion in the trial judge to set aside and annul the default verdict and judgment of March 26, 1928.” According to the bill of exceptions, the facts upon which the court acted in setting aside the default verdict and judgment were as follows: The case was in Fulton superior court, which has more than one division. Temporary alimony was granted by the judge in the motion division before whom the rule nisi was returnable. The verdict and judgment were had in a trial division presided over by a different judge. Under the rules of said superior court the judge of the first division makes up the civil calendar and sends the same to the judge of the second division. “However, verdicts in cases in default may be taken at any time after the term in which the default is entered.” After the default judgment was entered counsel for the defendant appeared before a judge in said court, and stated that said verdict and judgment had been inadvertently taken, “because the case was not on the trial calendar.” The judge directed that counsel for both sides appear. When they had done so, counsel for defendant stated that about two months after plaintiff sued for alimony the defendant husband had filed suit for divorce, which the wife had answered, in which answer she had not prayed for alimony or attorney’s fees; that counsel for the husband was under the impression that the alimony case would be tried “along with the divorce case;” and that counsel for the husband was engaged in court in another jurisdiction on the date the default verdict and judgment were taken.
   Gilbert, J.

1. “The allegations of the petition, not having been denied by any answer, are to be taken as true, without the introduction of evidence. Civil Code (1910), §§ 5539, 5662.” Higgs v. Higgs, 144 Ga. 20 (85 S. E. 1041).

2. The judgment setting aside the previously rendered verdict and judgment was in response to an oral motion. There was no written petition. The case was not an equitable proceeding under the Civil Code (1910), §§ 4584, 4585. ■ There was no motion for a new trial; there was no motion to open the default. § 5654. Held, that the court erred in setting aside the verdict and judgment.

3. The facts do not bring the case within the rule in Clark v. Ramsey, 138 Ga. 726 (75 S. E. 1128), and similar cases.

4. We do not rule upon the question of whether a verdict can in any case be “set aside and annulled” ,on an oral motion merely, without a brief of evidence and other indicia of a motion for new trial.

Judgment reversed.

AU the Justices concur.

Augustine Sams and C. Holland Feagan, for plaintiff.

Audley M. Lane and BJ. Paul Carpenter, for defendant.  