
    Hobbs v. Hobbs.
    No. 3982.
    July 19, 1924.
    Temporary alimony, etc. Before Judge Summerall. Coffee superior court. June 9, 1923.
    Mrs. Yera Hobbs, a resident of Effingham County, filed a petition for divorce and alimony against her husband, C. A. Hobbs, a resident of Coffee County. She predicated her right to a divorce upon the ground of cruel treatment and habitual intoxication. She alleged specific acts of cruelty and the drunkenness of her husband, and that the defendant was a healthy naan, holding a position as dispatcher with the Georgia & Florida Railway, and earned $187.50 per month. There were born to petitioner and defendant as the issue of the marriage three children, aged 10, 8, and 7 years. She alleged that she had no property other than her household goods, that the defendant had a small amount of land, worth perhaps $150, and some claims against the Savannah & Atlanta Railway, in amount over $700, but worth very nearly nothing if anything at all. She prayed that she be awarded the custody of the children, for temporary and permanent alimony for the support of herself and children, the costs of the litigation, attorney’s fees, and a total divorce. The petitioner further alleged “that the defendant has said that he would not contribute anything to the support of his family, and that to keep from doing so he would run away where he could not be found; and when he left Springfield, Georgia, defendant never let her know of his whereabouts, and that she learned of his whereabouts from others by inquiry; and this being the circumstances under which plaintiff labors, plaintiff verily believes that unless the writ of ne exeat issues defendant will not be present to abide the judgment made herein, and that defendant might dispose of all his property before judgment; for which reasons plaintiff prays your honor to grant such writ requiring the defendant to be personally present and abide said judgment.” Upon presentation of the petition the judge ordered the writ of ne exeat to issue, and that “in default of a bond in the sum of one thousand dollars by the defendant not to remove beyond the jurisdictional limits of the State, and not to dispose of any of his property enumerated in the foregoing petition, and to be in court when required by its order, to answer the judgment therein,” the defendant be committed to the common jail.
   Eussell, C. J.

1. The discretion of the trial judge in refusing a continuance was not manifestly abused; and on a question of alimony pending a libel for divorce this court will not scan closely the ruling of the court upon a motion for a continuance of the hearing on account of the apparent inaccessibility of witnesses whose affidavits are desired. Champion v. Champion, 68 Ga. 835. Especially is this so where there are minor children whose rights to maintenance and support are unaffected by the conduct of the wife, and whose custody the father does not seek.

2. On the hearing of an application for temporary alimony and attorney’s fees and the expenses of the litigation, the trial judge may allow as counsel fees such amount as may seem proper under the facts and circumstances of the case, although there is no evidence before him fixing the value of the services rendered or to be rendered by the plaintiff’s counsel. Sweat v. Sweat, 123 Ga. 801 (51 S. E. 716); Carnes v. Carnes, 138 Ga. 1 (74 S. E. 785); Bennett v. Bennett, 157 Ga. 848 (122 S. E. 616).

3. The record fails to disclose any motion made by the defendant to revoke the restraining order and writ of ne exeat previously granted, and the trial judge did not err in continuing the same in force.

4. The judge was empowered to allow temporary alimony from the date of the separation to the date of the hearing. Killingsworth v. Killingsworth, 148 Ga. 590 (97 S. E. 539). The sum awarded was not excessive in amount. However, in view of the condition of the defendant’s property, he should not have been ordered to pay such amount within 15 days from the date of the order. The judgment of the lower court is affirmed, with direction that it be so modified in the lower court as to allow the defendant to pay the alimony accrued, to wit $533.33 in six equal monthly payments beginning with the date the judgment of the superior court is so modified as hereby directed.

5. The award of temporary alimony for the support of the plaintiff and her minor children was not unsupported by the evidence.

Judgment affirmed, with direction.

The other Justices concur, except Atkinson and Gilbert, JJ., who concur in the judgment of affirmance, but not in that part of the judgment giving direction to the trial judge.

The defendant answered and denied the material allegations of the petition. He set up that the plaintiff had been guilty of improper and immoral conduct, and had neglected the defendant and their children. Further that the defendant is a poor man, earning his livelihood as a telegraph operator, earning about $75 per month, and has no property save that in the possession of the. plaintiff. Plaintiff is a skilled accountant, and was employed by the Savannah & Atlanta Bailway for a number of years; and while so employed she appropriated to her own use certain of the funds of said railway, and is now facing a criminal prosecution therefor. The suit for alimony is not instituted in good faith, but is a scheme of the plaintiff and one of her clandestine associates to oblige the defendant to pay off and discharge the shortage referred to and free her from a criminal prosecution. Should the court award alimony, the same would not be used for the support of his wife and children, but would be diverted to the payment of said shortage.

Upon the hearing on June 9, 1923, the defendant made a motion for a continuance, because of his inability to obtain the testimony of certain named persons, and because of the physical inability of sole counsel to “go into the hearing and properly represent the defendant.” In support of this motion counsel for the defendant stated in his place, that he had been employed sometime during the week of May 27, and had immediately advised with the defendant with reference to the testimony needed to meet the allegations of the plaintiff’s petition; that he made diligent effort to procure affidavits from the necessary witnesses, but that they were either inaccessible or their whereabouts unknown; that these witnesses would testify, and it would be true when so testified, as to the conduct of the plaintiff as set forth in the answer of the defendant; and that the motion was not.made for delay only. It was not stated when the defendant expected to procure the testimony of the witnesses were the continuance granted. Defendant’s counsel also stated in his place that he was physically unable to properly represent the defendant, and further stated that were the continuance granted any expense incurred by the plaintiff or her counsel by reason thereof would be borne by the defendant. This motion was overruled by the trial judge, and the hearing proceeded. The plaintiff introduced evidence to support the allegations of her petition, and denying that she had been guilty of improper conduct. The plaintiff testified that the defendant’s position was under a scale of pay of $187.50 per month. The defendant offered testimony to show that he was earning $90 per month, with deductions for lost time. In his testimony he reaffirmed the statements of his answer, amplifying the statements of improper conduct; and testified that on last Christmas he sent the children clothing worth about five dollars each. Other than this he had made no contribution to the support of his family. Y. E. Bargeron, counsel for the plaintiff, testified that as counsel for the Savannah & Atlanta Railway he was familiar with the shortage claimed against Mrs. Hobbs; that the shortage was caused by the mistaken kindness of Mrs. Hobbs, while agent for the express company and railroad, in taking notes and checks for freight charges and C. O. D. shipments, and the givers of the notes and checks failing in business and being unable to pay them, and this amount was charged up to Mrs. Hobbs.

The trial judge passed an order requiring the defendant to pay temporary alimony from the date of the separation until the date of the hearing in the sum of $40 per month, a total sum of $533.33 to be paid within 15 days, and ordering that the defendant pay within 15 days $100 as attorney’s fees and that he pay the further sum of $25 per month, beginning 30 days from date of the order, to the plaintiff as temporary alimony for herself and said minor children until the final decree of the court, and ordering that the “restraining order and ne exeat originally granted in this case be and remain in full force until the final disposition of this case, or until further order of this court.” This order is excepted to on the grounds that the same is contrary to the evidence and unsupported by the evidence; because there was no proof of the value of the property described in the plaintiff’s petition, and no proof of the ability of the defendant to pay gross alimony between the date of the separation and the date of the hearing; because there was no proof of the value of the services of counsel; and because there was no proof to authorize the continuance of the restraining order and ne exeat originally granted. The defendant also assigned error on the refusal of a continuance.

B. A. Moorej for plaintiff in error.

7. E. Bargeron and B. B. Ghasiain, contra.  