No. 29.

#### James D. Roseberry, plaintiff in error, *vs.*Catherine Roseberry, defendant in error.

[1.] Upon consideration of an application for alimony, by C R, pending a suit for divorce by her, against J D R, and where ,J D R filed Ms plea resisting such application, on the ground that he had never been lawfully . .married to C R, and proposed to make proof of the samo: *Held,*that such .plea should have been entertained ; and that it was error in the Court below to reject such proof, and to grant the application for alimony: *Held,*also, that it was competent for the Judge, without the aid of a Jury, to have tried and decided such issue.

■' Divorce and alimony, in'Stewart Superior Court. Decision by Judge Craweord, October Term, 1854.

Catherine Roseberry’s libel for divorce stated, as grounds, adultery and cruel treatment. An application being made for temporary alimony, James Roseberry made answer, that though married *in fact*to libellant, the marriage was void, *in law,*because she had a living husband at the time of the marriage, and who is still alive. On the hearing, he proposed to prove these facts, and prayed a Jury to determine this preliminary issue.

The Court refused the motion, and granted the application for temporary alimony. This decision is assigned as error.

B. S. Worrell and J. Johnson, for plaintiff in error.

Tucker & Beall, for defendant in error.

*By the Court.*

Starnes, J.

delivering the opinion.

The Court below seemed to think that the plaintiff in error, in his answer to the petition for alimony, had admitted his marriage with the defendant in error; for such admission is assigned as a reason why the Court should adopt the rule, that upon proof of marriage, and suit for divorce, alimony will be decreed, almost as matter of course.

*140This rule is correctly stated. It obtained in the Ecclesiasti] cal Courts, *(Mayhew vs. Mayhew,*1 *Ecc. R.*166,) and we have adopted it in this State. *(McGee vs.*McGee, 10 *Ga. R.*488. *Methvin vs. Methvin,*15 *Ga.*97.) But we think that the Court below erred in supposing, that in the case before him, this rule required him to reject the issue tendered.

His Honor assumed that the marriage was proven by the admission of the plaintiff in error. On the contrary, he expressly denied it, .alleging that the ceremony had been per formed, when the parties were supposed to have been married; but that .the defendant in error was, at the time, a *feme covert,*having a lawful husband then in life, and who is still in life.

The marriage being thus denied, there was no proof of it, nor anything that was equivalent to proof of it, before the Court; and we think he should have entertained the issue which the plaintiff in error proposed to make, and have heard the evidence which he avowed a readiness to, produce, for the purpose of sustaining his plea.

His Honor was also of the opinion, that to allow this inquiry, would have been to enter into a trial of the case upon its merits. The merits of the case, for divorce, rested upon the charge of adultery. Though, of course, there could have been no adultery without a marriage between the parties;, yet, the marriage was a preliminary — a matter preliminary and necessary, not only to the act of adultery, but to the right of the defendant in error to proceed with her suit for divorce; and the gist or substance of the suit, was the charge of such conduct on the part of the plaintiff in error, as authorized the Court to dissolve such marriage. The rule that the Courts will not inquire closely into the merits of the case for divorce, upon consideration of the application for alimony, excludes the idea that the question of marriage is regarded as part of these merits; for it is immediately coupled' with the proposition, that upon proof of marriage and suit for divorce, the Court will not inquire into the merits, fe. The proposition therefore is, that upon proof ■of marriáge and suit for divorce, the Court will not, in such a *141proceeding, closely inquire into the guilt of the defendant, and the plaintiff’s right to a divórce. And this very rule, which the Court below invoked as a guide in his judgment, precludes the inquiry into the merits, only where such marriage is proven.

But whilst we think the Court should have heard proof as to the fact in question, we do not agree with the Counsel for plaintiff in error, that the issue should have been submitted to a Jury. By analogy to the practice of the Ecclesiastical Courts, the Judge was competent to hear and decide upon this and all other questions necessary to a determination of the applicant’s right to alimony.

Let the judgment be reversed.