Caudle v. . Caudle

174 S.E. 304, 206 N.C. 484, 1934 N.C. LEXIS 225

• Court: Supreme Court of North Carolina
• Decided: May 2, 1934
• Status: Published

Opinion

Stacy, C. J.

It was said in Moore v. Moore, 130 N. C., 333, 41 S. E., 943, that upon application for alimony pendente lite under C. S., 1666, “whether the wife is entitled to alimony is a question of law upon the facts found,” reviewable on appeal by either party, and the “court below must find the facts” upon request. ■

The court erred, therefore, in declining to find the facts. Not until the facts are found can we determine the correctness of the ruling as a matter of law. McManus v. McManus, 191 N. C., 740, 133 S. E., 9.

It should be observed, perhaps, that plaintiff makes her application under C. S., 1666, and not under O. S., 1667. The dissimilarity of the two statutes has been pointed out in a number of cases, notably Price v. Price, 188 N. C., 640, 125 S. E., 264, and McManus v. McManus, supra.

Error.