Norman v. Norman

Supreme Court of North Carolina

Norman v. Norman

51 S.E.2d 927, 230 N.C. 61, 1949 N.C. LEXIS 562

CourtSupreme Court of North Carolina

DecidedMarch 2, 1949

StatusPublished

Cited by2 cases

This text of 51 S.E.2d 927 (Norman v. Norman) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Norman v. Norman, 51 S.E.2d 927, 230 N.C. 61, 1949 N.C. LEXIS 562 (N.C. 1949).

Pincite

Opinion

Devin, J.

Tbe plaintiff, husband, instituted his action for divorce a vinculo on tbe ground of adultery. G.S. 50-5 (1). Tbe defendant, *62 wife, answered denying tbe allegations of adultery, and for affirmative relief set up a cross-action for divorce a mensa. G-.S. 50-1 (10). Tbe case was tried before Judge Alley and a jury at October Term, 1947, and resulted in a verdict for tbe defendant, establishing tbe fact that defendant bad not committed adultery, and that plaintiff bad willfully abandoned her and failed to provide her support. Judgment was rendered accordingly, and tbe plaintiff was required to pay alimony.

Thereafter, on 22 May, 1948, plaintiff lodged a motion to set aside tbe judgment of Judge Alley on tbe ground that tbe court was without authority to make an order for tbe payment of alimony. This motion came on for bearing before Judge Sink at October Term, 1948, and was denied.

Clearly, tbe plaintiff’s remedy against a judgment thought to be erroneous was an appeal to this Court. Judge Sink properly denied tbe plaintiff’s motion. Plaintiff contends, however, that tbe defendant’s cross-action for alimony could not be maintained in tbe suit which be had instituted, citing Silver v. Silver, 220 N.C. 191, 16 S.E. 2d 834. In that case it was held that tbe wife’s cross-action for alimony without divorce under C.S. 1667 (now G.S. 50-16) would not sustain a judgment for permanent alimony. Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517; Adams v. Adams, 212 N.C. 373, 193 S.E. 274. But here judgment has been rendered on tbe verdict of tbe jury for divorce a mensa, and tbe court bad tbe power to make an order for tbe payment of alimony as incident thereto, as pointed out in tbe Silver case. Shore v. Shore, 220 N.C. 802, 18 S.E. 2d 353; Jenkins v. Jenkins, 225 N.C. 681, 36 S.E. 2d 233; Nall v. Nall, 229 N.C. 598, 50 S.E. 2d 737.

Judgment affirmed.

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Devin, J.

Tbe plaintiff, husband, instituted his action for divorce a vinculo on tbe ground of adultery. G.S. 50-5 (1). Tbe defendant, *62 wife, answered denying tbe allegations of adultery, and for affirmative relief set up a cross-action for divorce a mensa. G-.S. 50-1 (10). Tbe case was tried before Judge Alley and a jury at October Term, 1947, and resulted in a verdict for tbe defendant, establishing tbe fact that defendant bad not committed adultery, and that plaintiff bad willfully abandoned her and failed to provide her support. Judgment was rendered accordingly, and tbe plaintiff was required to pay alimony.

Thereafter, on 22 May, 1948, plaintiff lodged a motion to set aside tbe judgment of Judge Alley on tbe ground that tbe court was without authority to make an order for tbe payment of alimony. This motion came on for bearing before Judge Sink at October Term, 1948, and was denied.

Clearly, tbe plaintiff’s remedy against a judgment thought to be erroneous was an appeal to this Court. Judge Sink properly denied tbe plaintiff’s motion. Plaintiff contends, however, that tbe defendant’s cross-action for alimony could not be maintained in tbe suit which be had instituted, citing Silver v. Silver, 220 N.C. 191, 16 S.E. 2d 834. In that case it was held that tbe wife’s cross-action for alimony without divorce under C.S. 1667 (now G.S. 50-16) would not sustain a judgment for permanent alimony. Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517; Adams v. Adams, 212 N.C. 373, 193 S.E. 274. But here judgment has been rendered on tbe verdict of tbe jury for divorce a mensa, and tbe court bad tbe power to make an order for tbe payment of alimony as incident thereto, as pointed out in tbe Silver case. Shore v. Shore, 220 N.C. 802, 18 S.E. 2d 353; Jenkins v. Jenkins, 225 N.C. 681, 36 S.E. 2d 233; Nall v. Nall, 229 N.C. 598, 50 S.E. 2d 737.

Judgment affirmed.

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51 S.E.2d 927, 230 N.C. 61, 1949 N.C. LEXIS 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norman-v-norman-nc-1949.

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