Brewer v. . Brewer

153 S.E. 163, 198 N.C. 669, 1930 N.C. LEXIS 444

• Court: Supreme Court of North Carolina
• Decided: May 14, 1930
• Status: Published

Opinion

OlaeksoN, J.

The defendant demurred ore terms after the return of the verdict, and before judgment was signed by the court below, on the ground that “the complaint does not state facts sufficient to constitute a cause of action.”

C. S., 511(6). C. S., 518, in part, is as follows: “If objection is not taken either by demurrer or answer, the defendant waives the same, except the objections to the jurisdiction of the court and that the complaint does not state facts sufficient to constitute a cause of action.”

The law does not favor divorces, and in divorce cases more detail and minuteness is required in the complaint, and it has been held in this jurisdiction that the complaint for divorce from bed and board is insufficient which does not specifically state the circumstances of the alleged acts of cruelty, give time and place and state what was plaintiff’s own conduct and that such acts were without provocation or fault on the part of the plaintiff seeking the divorce. Martin v. Martin, 130 N. C., 27. See cases referred to in Davidson v. Davidson, 189 N. C., at p. 628.

When a defective statement of a good cause of action is alleged, and not a defective cause of action, which is fatal on demurrer, and the complaint is insufficient and a demurrer is filed by the defendant distinctly specifying the grounds of objection under C. S., 512 (Enloe v. Ragle, 195 N. C., 38), the court ordinarily allows the plaintiff to amend to cure the defect. In the present action defendant did not demur on either ground, but answered and set forth the antecedent and attending circumstances minutely and in detail that caused the several disturbances alleged by plaintiff, claiming plaintiff and not she was at fault. This was taken to be denied by plaintiff. C. S., 543. She further prayed for affirmative relief and alimony under C. S., 1667.

The cause came on for trial in the court below. The issues were not objected to by defendant. The evidence is not in the record, but it is presumed that both parties to. the controversy and others testified before the jury in the court below and all the differences were brought out pro and con in detail, all the antecedent and attending circumstances and causes that brought about the troubles that plaintiff complained of and defendant complained of. King v. R. R., 176 N. C., 301; Ricks v. Brooks, 179 N. C., at p. 208-9.

"We think the ease is distinguishable from the Martin case, supra, when considered in the light of the many damaging allegations in the complaint against defendant for divorce, with the allegation that the treatment was without cause or provocation on plaintiff’s part, and the “aider” in the answer, and defendant’s prayer for affirmative relief; the pleadings will be liberally construed “with a view to substantial justice between the parties,” C. S., 535; C. S., 549.

C. S., 1660, is as follows: “The Superior Court may grant divorces from bed and board on application of the party injured, made as by law provided: (1) If either party abandons his or her family, (2) maliciously turns the other out of doors; (3) by cruel and barbarous treatment endangers the life of the other; (4) offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.”

Defendant in her brief says: “The appellant is unable to find a decision of this Court in any action brought under this section of the statute wherein the husband was the plaintiff in the action; and, while the language of the statute would seem to indicate that it affords relief of this nature to husbands against cruel and barbarous treatment on the part of the wife, yet, the appellant doubts that it was ever intended by the Legislature that this statute should operate in favor of the husband.” The statute says on application “of the party injured.” According to the verdict of the jury, what the wife did to the husband, in every day parlance was “a plenty.” If he was not the “party injured,” who could be? The language of the statute is clear and gives the man an equal right which has always been accorded the woman. "We find

No error.