Carnes v. . Carnes

169 S.E. 222, 204 N.C. 636, 1933 N.C. LEXIS 219

Opinion

Stacy, C. J.

Nothing but the record proper — summons, pleadings, verdict and judgment — has been sent up as the case on appeal. It contains none of the evidence or the charge of the court. Hence, the anomaly of the judgment granting a divorce a mensa et thoro to both parties at the same time, is not before us for consideration. Only the party injured is entitled to a divorce from bed and board under C. S., 1660. Sanderson v. Sanderson, 178 N. C., 339, 100 S. E., 590. See, also, Reeves v. Reeves, 203 N. C., 792. Evidently, the jury took the view that both parties had been injured.

It may be doubted whether the plaintiff’s “reply” is sufficient to warrant a decree in his favor. Martin v. Martin, 130 N. C., 27, 40 S. E., 822. It is not accompanied by the jurisdictional affidavit as required by C. S., 1661. Nichols v. Nichols, 128 N. C., 108, 38 S. E., 296. But as stated above, nothing is questioned except the order granting the wife alimony pendente lite and counsel fees. The verdict is not assailed.

In an action by a wife against her husband for divorce from bed and board, she must not only set out with particularity the acts of cruelty on the part of the husband upon which she relies, but she is also required to aver, and consequently to prove, that such acts were without adequate provocation on her part. Dowdy v. Dowdy, 154 N. C., 556, 70 S. E., 917; Martin v. Martin, supra; O’Connor v. O’Connor, 109 N. C., 139, 13 S. E., 887; Jackson v. Jackson, 105 N. C., 433, 11 S. E., 173; White v. White, 84 N. C., 340.

As long as the fifth issue stands undisturbed, it would seem that the defendant is not entitled to the relief demanded by her, certainly not to allowance for alimony and counsel fees.. Dowdy v. Dowdy, supra.

Error.