CiARic, C. J.
There was evidence to support the above findings of fact, and it cannot be questioned that upon such findings the judgment
of tbe court is fully supported. Tbe cases of
Everton v. Everton,
50 N. C., 202, and
Miller v. Miller,
89 N. C., 402, cannot be deemed authority in tbis day, but even if they were, they would not authorize tbe reversal of tbe orders made by tbe judge in tbis ease. Indeed, tbe defendant’s counsel rest tbe appeal practically upon tbe proviso' in Revisal 1566, as follows:
“Provided,
that no order allowing alimony
pendente lite
shall be made unless tbe husband bad five days notice thereof, and in all eases of application for alimony
pendente lite
under tbis or tbe succeeding section, whether in or out of term, it shall be admissible for tbe husband to be beard by affidavit in reply or answer to tbe allegations of tbe complaint”; but tbis Court has uniformly held that tbe five days notice of a motion applies only when such motion is beard out of term, and that parties are fixed with notice of all motions or orders made during tbe term of court in causes pending therein,
Hemphill v. Moore,
104 N. C., 379;
Coor v. Smith,
107 N. C., 431, and numerous cases since.
In
Lea v. Lea,
104 N. C., 603, which was upon a motion for alimony
pendente lite,
tbe Court said: “Tbe statute does not require that a day shall be set when a motion in tbe cause is to be beard at term. If only provides that five days notice shall be given, and we think that tbis requirement was fully complied with in tbe present case.”
In tbe case at bar the complaint filed on Saturday, 16 October, asks for an order for alimony
pendente lite,
and tbe order was made on tbe Thursday following, 21 October, five days thereafter.
In
Zimmerman v. Zimmerman,
113 N. C., 434, tbe Court held on an appeal from an order for alimony: “Tbe application for alimony can be made by a motion in tbe cause, and tbe defendant is fixed with notice thereof. It is only when made out of term that a notice is necessary,” citing
Coor v. Smith,
107 N. C., 430. In
Moore v. Moore,
130 N. C., 333, it was held: “A motion for alimony
pendente lite
may be beard anywhere in tbe judicial district, five days notice being required when beard out of term-time,” and bolding that such five days notice “is required only when a motion is beard out of term,” citing
Zimmerman v. Zimmerman,
113 N. C., 432.
Besides all tbis, Revisal, 877, provides: “When notice of a motion is necessary, it must be served ten days before tbe time appointed for tbe bearing, but tbe court or judge may, by .an order to show cause, prescribe a shorter time.” In tbis case tbe court in effect did shorten tbe time when, refusing to bear tbe motion on Wednesday, be directed that it be beard tbe following day, which was tbe last day of tbe term. It is true that tbe statute as to alimony makes tbe time of tbe notice
five days, instead of ten, but tbe authority conferred by Revisal 877, authorizes the judge to shorten the time for the notice in any case “when notice of a motion is necessary.”
In Pell’s Revisal, under section 877, a great number of cases are cited holding that a party to an action pending in court “is fixed with notice of all motions and orders except those made out of term, of which notice must be given.” A motion might be made during the term of court, without previous notice, in a case of such nature that it would be error for that reason to enter judgment thereon without giving the defendant sufficient time to prepare affidavits or other evidence, but this would not be on the ground that a motion in a cause if made at term necessarily requires notice. The defendant in this case relied on his answer as an affidavit in the cause, and does not allege that he did not have opportunity of fully setting up his defense. In fact his case was carried over till the next day and to the latest moment before the court adjourned. The plaintiff, as the court finds, was wholly without means of subsisténce or means of prosecuting the cause. If the hearing had been postponed till some other time, or to some possibly distant point in the district, she would have been unable 'to present her cause, if the finding of the judge is correct in this particular, as we must take it to be.
The facts found most fully justified the order of the judge. It would have been a great hardship to- deny the plaintiff .a hearing at this term of the court, which hearing was had five days .after application for the order filed on Saturday and which in itself gave notice of the motion of which the defendant had service, for he filed his answer thereto at that term, and the hearing was had upon such answer, treated .as an affidavit, and the defendant did not offer any additional evidence. Though he was in court he did not go upon the stand as the plaintiff did, nor did he offer additional affidavits. The refusal to postpone the hearing longer than the next day does not show any hardship placed on the defendant whereas its postponement without good cause would have been a great hardship to the plaintiff.
Moreover, Revisal 1566, provides that no-notice shall be necessary if the husband has abandoned his wife and left the State, or if he is about to dispose of his property for the purpose of defeating the claim of his wife. The court found that plaintiff was driven from home by the defendant’s conduct and that he had told plaintiff he was going to sell everything and was not going to be bothered by women and children. The verification to the complaint avers that the defendant has threatened to sell his property and that he is about to remove his property and effects from the State, whereby she may be disappointed in
the alimony, and the court finds that the defendant has moved the two children from the jurisdiction of this State) and has them in Virginia.
The defendant excepts that the complaint does not aver that the facts therein stated had existed to the knowledge of the plaintiff for six months prior to the filing of the complaint. But the verification is in the language required by the statute: “The facts set forth in the complaint as grounds for a divorce from bed and board have existed to her knowledge at least six months prior to the filing, of the complaint” (which are sufficient facts under the statute, if true), and adds: “except those therein stated as having occurred within said six months,” and these' last are merely in aggravation.
Where there was condonation upon a condition which is broken, the former conduct of the defendant is revived in full force.
Page v. Page,
167 N. C., 346, and here the court found that whatever condonation there was upon condition that the defendant would never mistreat the plaintiff again, and the facts show that he continued to- mistreat her. TTpon the complaint, verified as in this case, the plaintiff can proceed to trial upon the facts which existed prior to six months and also upon the facts occurring since said six months, at least so far as necessary to show breach of the -condition upon which the con-donation was made.
Sanders v. Sanders,
157 N.
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CiARic, C. J.
There was evidence to support the above findings of fact, and it cannot be questioned that upon such findings the judgment
of tbe court is fully supported. Tbe cases of
Everton v. Everton,
50 N. C., 202, and
Miller v. Miller,
89 N. C., 402, cannot be deemed authority in tbis day, but even if they were, they would not authorize tbe reversal of tbe orders made by tbe judge in tbis ease. Indeed, tbe defendant’s counsel rest tbe appeal practically upon tbe proviso' in Revisal 1566, as follows:
“Provided,
that no order allowing alimony
pendente lite
shall be made unless tbe husband bad five days notice thereof, and in all eases of application for alimony
pendente lite
under tbis or tbe succeeding section, whether in or out of term, it shall be admissible for tbe husband to be beard by affidavit in reply or answer to tbe allegations of tbe complaint”; but tbis Court has uniformly held that tbe five days notice of a motion applies only when such motion is beard out of term, and that parties are fixed with notice of all motions or orders made during tbe term of court in causes pending therein,
Hemphill v. Moore,
104 N. C., 379;
Coor v. Smith,
107 N. C., 431, and numerous cases since.
In
Lea v. Lea,
104 N. C., 603, which was upon a motion for alimony
pendente lite,
tbe Court said: “Tbe statute does not require that a day shall be set when a motion in tbe cause is to be beard at term. If only provides that five days notice shall be given, and we think that tbis requirement was fully complied with in tbe present case.”
In tbe case at bar the complaint filed on Saturday, 16 October, asks for an order for alimony
pendente lite,
and tbe order was made on tbe Thursday following, 21 October, five days thereafter.
In
Zimmerman v. Zimmerman,
113 N. C., 434, tbe Court held on an appeal from an order for alimony: “Tbe application for alimony can be made by a motion in tbe cause, and tbe defendant is fixed with notice thereof. It is only when made out of term that a notice is necessary,” citing
Coor v. Smith,
107 N. C., 430. In
Moore v. Moore,
130 N. C., 333, it was held: “A motion for alimony
pendente lite
may be beard anywhere in tbe judicial district, five days notice being required when beard out of term-time,” and bolding that such five days notice “is required only when a motion is beard out of term,” citing
Zimmerman v. Zimmerman,
113 N. C., 432.
Besides all tbis, Revisal, 877, provides: “When notice of a motion is necessary, it must be served ten days before tbe time appointed for tbe bearing, but tbe court or judge may, by .an order to show cause, prescribe a shorter time.” In tbis case tbe court in effect did shorten tbe time when, refusing to bear tbe motion on Wednesday, be directed that it be beard tbe following day, which was tbe last day of tbe term. It is true that tbe statute as to alimony makes tbe time of tbe notice
five days, instead of ten, but tbe authority conferred by Revisal 877, authorizes the judge to shorten the time for the notice in any case “when notice of a motion is necessary.”
In Pell’s Revisal, under section 877, a great number of cases are cited holding that a party to an action pending in court “is fixed with notice of all motions and orders except those made out of term, of which notice must be given.” A motion might be made during the term of court, without previous notice, in a case of such nature that it would be error for that reason to enter judgment thereon without giving the defendant sufficient time to prepare affidavits or other evidence, but this would not be on the ground that a motion in a cause if made at term necessarily requires notice. The defendant in this case relied on his answer as an affidavit in the cause, and does not allege that he did not have opportunity of fully setting up his defense. In fact his case was carried over till the next day and to the latest moment before the court adjourned. The plaintiff, as the court finds, was wholly without means of subsisténce or means of prosecuting the cause. If the hearing had been postponed till some other time, or to some possibly distant point in the district, she would have been unable 'to present her cause, if the finding of the judge is correct in this particular, as we must take it to be.
The facts found most fully justified the order of the judge. It would have been a great hardship to- deny the plaintiff .a hearing at this term of the court, which hearing was had five days .after application for the order filed on Saturday and which in itself gave notice of the motion of which the defendant had service, for he filed his answer thereto at that term, and the hearing was had upon such answer, treated .as an affidavit, and the defendant did not offer any additional evidence. Though he was in court he did not go upon the stand as the plaintiff did, nor did he offer additional affidavits. The refusal to postpone the hearing longer than the next day does not show any hardship placed on the defendant whereas its postponement without good cause would have been a great hardship to the plaintiff.
Moreover, Revisal 1566, provides that no-notice shall be necessary if the husband has abandoned his wife and left the State, or if he is about to dispose of his property for the purpose of defeating the claim of his wife. The court found that plaintiff was driven from home by the defendant’s conduct and that he had told plaintiff he was going to sell everything and was not going to be bothered by women and children. The verification to the complaint avers that the defendant has threatened to sell his property and that he is about to remove his property and effects from the State, whereby she may be disappointed in
the alimony, and the court finds that the defendant has moved the two children from the jurisdiction of this State) and has them in Virginia.
The defendant excepts that the complaint does not aver that the facts therein stated had existed to the knowledge of the plaintiff for six months prior to the filing of the complaint. But the verification is in the language required by the statute: “The facts set forth in the complaint as grounds for a divorce from bed and board have existed to her knowledge at least six months prior to the filing, of the complaint” (which are sufficient facts under the statute, if true), and adds: “except those therein stated as having occurred within said six months,” and these' last are merely in aggravation.
Where there was condonation upon a condition which is broken, the former conduct of the defendant is revived in full force.
Page v. Page,
167 N. C., 346, and here the court found that whatever condonation there was upon condition that the defendant would never mistreat the plaintiff again, and the facts show that he continued to- mistreat her. TTpon the complaint, verified as in this case, the plaintiff can proceed to trial upon the facts which existed prior to six months and also upon the facts occurring since said six months, at least so far as necessary to show breach of the -condition upon which the con-donation was made.
Sanders v. Sanders,
157 N. C., 229.
The amount of attorney’s fees and alimony is within the discretion of the trial court and is not reviewable unless such discretion is abused.
Moore v. Moore,
130 N. C., 333;
Barker v. Barker,
136 N. C., 316;
Bailey, v. Bailey,
127 N. C., 474. The court had the right to- .award the plaintiff an .amount per month for the maintenance of the children, to begin when the children should be placed in her custody.
Ellett v. Ellett
157 N. C., 161.
It was in the sound discretion of the trial court to award the custody of the -children, and in view of the facts as to the conduct and character of the defendant, his continued drunkenness, and that he had .already carried the children out of the State, the order to place them in the custody of the mother was proper.
The charges of brutality and mistreatment are not merely allegations in the complaint, but are findings of fact by the judge, and justify his judgment. The ruling of
Pearson, C. J.,
in
S. v. Black,
60 N. C., 262, that a husband had the right to thrash his wife “to make her behave herself,” and the ruling of the trial judge in
S. v. Rhodes,
61 N. C., 453 (which was affirmed on appeal), that a husband “had a right to whip his wife with a switch no larger than his thumb,” were merely the expression of judicial opinion formulated in the) barbarous ages of the Common Law '(for there was never a statute to that effect),
wbicb still lingered in tbe atmosphere of the Reports, and was brusquely brushed aside by
Settle, J.,
in
S. v. Oliver,
70 N. C., 61, when he succinctly said: “The courts have advanced from that barbarism.” This was said in 1874, now more than forty years ago, when the writers of both the previous opinions were still on the bench, and with their concurrence. But if that doctrine was still law it would not justify this defendant, who, as the judge finds, beat his wife with his fists and left bruises upon her, and not under the pretense even of “making her behave herself.” Nor would his false charges of adultery and his profanity and other mistreatments be justified within the limits of
Everton v. Everton
and
Miller v. Miller,
above cited, if we could hold that we had not also “advanced from that barbarism.” Indeed, the facts which in
Miller v. Miller
were held to be a venial offense in the husband, and not entitling the wife even to a divorce from bed and board or alimony, have now been made by the Legislature ground for an absolute divorce.
The judgment of the court below must be
Affirmed.