
    Lee v. Lee.
    No. 3140.
    January 23, 1923.
   Gilbert, J.

1. Temporary alimony and counsel fees are awarded to afford the wife the means of contesting all of the issues between herself and her husband, where a suit for divorce is filed by the husband and a cross-action is filed by the wife asking for alimony and attorney’s fees and denying the right of the husband to divorce. One of the issues raised in the present ease is the wife’s plea denying jurisdiction of the divorce suit. Odum v. Odum, 132 Ga. 437 (64 S. E. 470); Carnes v. Carnes, 138 Ga. 1 (a) (74 S. E. 785); Parker v. Parker, 148 Ga. 196 (3) (96 S. E. 211); Waycaster v. Waycaster, 150 Ga. 75 (2) (102 S. E. 353); Legg v. Legg, 150 Ga. 133, 134 (102 S. E. 829).

2. The Civil Code (1910), § 2950 provides as follows: “No court in this State shall grant divorce of any character to any person who has not been a bona fide resident of the State twelve months before the filing of the application for divorce.” There is no provision of law extending this requirement of twelve months bona fide residence to the application of the wife for alimony and attorney’s fees.

3. The husband, in filing his suit in the county of Chatham, voluntarily submitted himself to the jurisdiction of that court. On the face of his petition jurisdiction appeared complete. Only when the wife filed her plea was the jurisdictional fact challenged. On the trial the husband ■ did not appear. No evidence was admitted. The court, erroneously we think, because of the sworn plea of the wife, adjudged the court to be wholly without jurisdiction in the case for any purpose. In the case of Campbell v. Campbell, 67 Ga. 423, it was held: “Where a husband arriving in Savannah, in this State, abandons his wife, a bill by her • for alimony will lie against him if found and served in the county of Chatham; and the chancellor, thus having jurisdiction of the case for permanent alimony, may grant temporary alimony as in cases of petitions for divorce.” In that case the court, having jurisdiction for purposes of permanent alimony, was empowered to grant temporary alimony as in case of petitions for divorce. On principle, the filing of the suit by the husband and the filing of the cross-action by the wife, as in this case, was equivalent to the filing of an independent action for alimony, and personal service of the same, where both parties were nonresidents.

4. Applying the principles above ruled, it follows that the judgment of the court, dismissing the entire case on the ground that the court was without jurisdiction, must be reversed.

Judgment reversed.

All the Justices concur.

Divorce and alimony. Before Judge Meldrim. Chatham superior court. March 8, 1922.

A clear and concise statement of the case, together with the judgment on which error is assigned, is contained in the following opinion of the trial judge, to wit: Charles B. Lee filed his petition for divorce, on March 2nd, 1921. The sheriff returned non est inventus, and service was alleged to have been made by publication and by mailing paper containing notice to defendant. There was no appearance or pleading by the defendant; and two concurrent verdicts having been rendered in favor of the plaintiff, a decree was entered in his favor on December 7th, 1921. On December 10th, 1921, defendant filed her motion for new trial on the general ground, and on January 30, 1922, amended her motion. A new trial was granted, February 18th, 1922. The new trial having been granted, the case stood for trial on March 7th, 1922, on which day the defendant filed her answer. In this answer, which is under oath, she denies that the plaintiff was a bona fide resident of this State for twelve months before the filing of the application for divorce, and in her amended motion for new trial she swears that the allegation in the petition that her husband had been a resident of the State of Georgia for a year before the filing of the divorce proceeding is ‘ absolutely false.’ Lee fails to appear. ITis counsel has withdrawn from the case. There is no disputed issue of fact as to Lee not having been a bona fide resident of the State for twelve months before this action was brought. The court is without jurisdiction, and the case is- dismissed. The answer which is filed in the case and which prays for permanent alimony, being a part of the divorce proceeding and incident to it, cannot be considered as a proceeding separate and apart from the action for divorce. . The court, being without jurisdiction to grant the divorce, is equally without jurisdiction to grant permanent alimony as an incident to the divorce.”

David 8. Atlcinson, for plaintiff in error.  