Morris v. . Morris

75 N.C. 168

• Court: Supreme Court of North Carolina
• Decided: June 5, 1876
• Status: Published

Opinion

Bynum, J.

“ Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, made as by law provided, in the’ following cases : 1. If either party shall separate from the other and live in adultery. 2. If the wife commits adultery. 3. If either party at the time of the marriage was and still is naturally impotent.” Bat. Rev., chap. 37, sec. 4.

The application here is for divorce from the bonds of matrimony. A separation is charged, but there is no allegation that the husband after separating from the wife lived in adultery, nor was any issue submitted to and found by the jury to that effect. By the plain words of the statute, therefore, the petitioner is not entitled to. a decree of divorce a vinculo matrimonii in this action. There is no prayer for a divorce a mensa et thoro, and for that reason, if for no other, a decree for separation from bed and board cannot be allowed. Hansley v. Hansley, 10 Ired., 506. As from the facts stated in the complaint, it is more than probable that the defendant has lived in adultery since the separation, and that it could have been established had the proper allegation been made in the complaint, the action will be dismissed without prejudice.

There is no error.

Per Curiam. . Judgment affirmed.