1. Under the record in this case, the decree of the Superior Court of Fulton County never became final, since it was set aside within thirty days from its rendition.
2. The contention of the defendant that the contract had become extinguished by the decree of the superior court is without merit.
Action on contract. Before Judge Parker. Fulton Civil Court. May 23, 1955.
Nancy M. Hathcock (hereinafter called the plaintiff) married Lee E. Hathcock (hereinafter called the defendant) in 1923. On January 11, 1952, a judge of the Superior Court of Fulton County, upon petition of the plaintiff, granted a total divorce and alimony. The decree adopted by the court included the provisions of a contract as follows: "Georgia, Fulton County: This Agreement, made and entered into this the 26th day of September, 1951, by and between Nancy M. Hathcock, hereinafter referred to as the party of the first part, and Luther E. Hathcock, hereinafter referred to as the party of the second part,
"Witnesseth: Whereas, both of the parties hereto were intermarried in due and legal form in the year 1923, and,
"Whereas, the parties hereto separated on or about the 30th day of April, 1951, and have since that date been living in a bona fide state of separation, and,
"Whereas, the party of the first part, will, at some future date file suit for divorce against party of the second part in the Fulton Superior Court, and,
"Whereas, hereto desire to adjust and settle all questions of property rights of whatever kind, nature or description, as well as questions of alimony, both temporary and permanent,
"Now therefore, in consideration of the mutual advantages and benefits accruing respectively to the parties hereto, and the mutual covenants hereinafter contained,
"It is agreed as follows: I. Contemporaneously with the execution of the within instrument, party of the second part will execute a negotiable promissory note in the principal sum of $2,500 bearing interest at five (5%) percent and payable on or before the first day of October, 1953.
"II. It is further understood and agreed between the parties hereto that the party of the second part shall pay to the party of the first part the sum of $60 per month as permanent alimony so long as the party of the first part remains unmarried and said sum of $60 per month shall be paid promptly on the first day of each month commencing on the first day of October, 1951, and on the first day of each and every month thereafter, so long as party of the first part remains unmarried.
"III. It is further understood and agreed that the party of the second part shall pay to Arnold S. Kaye, the attorney representing the party of the first part, the sum of $100 as attorney's fees for the preparation and prosecution of any divorce action that the party of the first part might institute.
"IV. The party of the first part covenants and agrees that she will return to the party of the second part any clothes and personal property and other effects she has now in her possession which belong to party of the second part, including miscellaneous letters and correspondence.
"V. It is directly understood and agreed that this agreement, as herein set forth, is in full and complete settlement of any and all property rights, claims for alimony, both temporary or permanent, and attorney's fees.
"VI. It is further understood that this instrument shall be made the judgment of the court in any divorce proceedings brought by party of the first part, settling all questions as to temporary and permanent alimony, attorneys fees, and shall also, at the proper time, be made the judgment of the court settling these matters.
"VII. This contract is made and executed in triplicate, one copy for each of the parties and one copy to be filed in divorce proceedings for the purpose of becoming a part of the divorce suit and becoming a permanent court record. Either the original or duplicate copy shall serve and be considered as the original.
"In witness whereof, the parties hereto have set their hands and affixed their seals the day and year first above written.
Nancy M. Hathcock
Party of the first part.
Luther E. Hathcock
Party of the second part."
On February 8th, 1952 (within thirty days from the date of the above mentioned decree), the plaintiff filed an application to the superior court to vacate and set aside the decree. In this order the court set aside the order of January 11, 1952, granting the divorce. Thereafter on November 22, 1954, the plaintiff filed a petition in the Civil Court of Fulton County, in which she sought to recover from the defendant $3,940, together with interest and court costs, on the above-mentioned contract, this being the amount the defendant was in arrears on the payment under the contract set out hereinabove. The defendant filed his answer denying that the plaintiff had a right to recover under the contract the amount for which suit was brought. He based his defense on the contention that the decree of the Superior Court of Fulton County of January 11, 1952, extinguished the right of the plaintiff to recover under the contract. The issue thus formed was submitted to Honorable J. Wilson Parker, Judge of the Civil Court of Fulton County, to pass upon the law and facts without a jury.
After hearing evidence, the court ruled in favor of the plaintiff. The defendant filed a motion for a new trial, which was denied. On this judgment the defendant assigns error.
1. Code (Ann.) 30-101 provides in part as follows: "If a verdict or judgment is rendered, authorizing the grant of a total divorce or for total divorce and permanent alimony, the verdict or judgment shall not become final for a period of thirty days." The plaintiff, within thirty days of the decree of the Superior Court of Fulton County, obtained an order setting aside the decree. The decree never became final and was set aside within the time provided for by law. There are no pleadings or evidence in the record attacking the proceedings of the superior court in setting aside the decree of the superior court. In this situation the presumption is that the order was valid in every respect.
2. The above being true, it necessarily follows that the contract sued upon in the instant case, regarding the property settlement between the parties in this case, is valid and the claimant was within her right in seeking recovery against the defendant. See Craig v. Craig, 53 Ga. App. 632 (186 S. E. 755).
The Civil Court of Fulton County did not err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.