Silver v. . Silver

Supreme Court of North Carolina

Silver v. . Silver

16 S.E.2d 834, 220 N.C. 191, 1941 N.C. LEXIS 504

CourtSupreme Court of North Carolina

DecidedOctober 15, 1941

StatusPublished

Cited by15 cases

This text of 16 S.E.2d 834 (Silver v. . Silver) 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

Silver v. . Silver, 16 S.E.2d 834, 220 N.C. 191, 1941 N.C. LEXIS 504 (N.C. 1941).

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Opinion

*193 BarNhill, <T.

The plaintiff in this cause entered a demurrer ore terms to the cross complaint for that it fails to state facts sufficient to constitute a cross action. The demurrer must be overruled. The facts alleged in the cross action are sufficient to sustain at least defendant’s prayer for alimony pendente lite.

The judgment below cannot be sustained under C. S., 1667. This section “only applies to independent suits for alimony” and a decree thereunder cannot be entered in a cross action by a wife in a suit instituted by the husband. Dawson v. Dawson, 211 N. C., 453, 190 S. E., 749, and cases cited; Adams v. Adams, 212 N. C., 373, 193 S. E., 274.

The court below was without authority to enter a judgment under C. S., 1665. Under that section alimony may be allowed, only “when any court adjudges any two married persons divorced from bed and board.” The alimony allowed under this section is incident to and dependent upon a decree of divorce a mensa. As no divorce a mensa was granted on the verdict no permanent alimony could be allowed.

There is a further impelling reason why the judgment below must be vacated. On the record as it appears here defendant’s answer is not verified either under 0. S., 529, or under C. S., 1661. This is a jurisdictional prerequisite, and the verification must be under C. S., 1661. Ragan v. Ragan, 212 N. C., 753, 194 S. E., 458; Clark v, Clark, 133 N. C., 28.

If the record speaks the truth the defendant may apply for leave to amend. C. S., 547; Ragan v. Ragan, supra; Waters v. Waters, 125 N. C., 590; Hendon v. R. R., 127 N. C., 110; Robeson v. Hodges, 105 N. C., 49. If allowed, the amendment will relate back to the time of the filing of the answer. Lefler v. Lane, 170 N. C., 181, 86 S. E., 1022. If the prayer for general relief is deemed insufficient to support a decree of divorce a mensa, the same rule as to amendment applies. See, however, Lipe v. Trust Co., 206 N. C., 24, 173 S. E., 316; Bolich v. Ins. Co., 206 N. C., 144, 173 S. E., 320; McNeill v. Hodges, 105 N. C., 52; Presson v. Boone, 108 N. C., 78.

The decree allowing permanent alimony, not being supported by a judgment of divorce a mensa, cannot be sustained. The cause must be remanded for further proceedings.

Error and remanded.

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*193 BarNhill, <T.

The plaintiff in this cause entered a demurrer ore terms to the cross complaint for that it fails to state facts sufficient to constitute a cross action. The demurrer must be overruled. The facts alleged in the cross action are sufficient to sustain at least defendant’s prayer for alimony pendente lite.

The judgment below cannot be sustained under C. S., 1667. This section “only applies to independent suits for alimony” and a decree thereunder cannot be entered in a cross action by a wife in a suit instituted by the husband. Dawson v. Dawson, 211 N. C., 453, 190 S. E., 749, and cases cited; Adams v. Adams, 212 N. C., 373, 193 S. E., 274.

The court below was without authority to enter a judgment under C. S., 1665. Under that section alimony may be allowed, only “when any court adjudges any two married persons divorced from bed and board.” The alimony allowed under this section is incident to and dependent upon a decree of divorce a mensa. As no divorce a mensa was granted on the verdict no permanent alimony could be allowed.

There is a further impelling reason why the judgment below must be vacated. On the record as it appears here defendant’s answer is not verified either under 0. S., 529, or under C. S., 1661. This is a jurisdictional prerequisite, and the verification must be under C. S., 1661. Ragan v. Ragan, 212 N. C., 753, 194 S. E., 458; Clark v, Clark, 133 N. C., 28.

If the record speaks the truth the defendant may apply for leave to amend. C. S., 547; Ragan v. Ragan, supra; Waters v. Waters, 125 N. C., 590; Hendon v. R. R., 127 N. C., 110; Robeson v. Hodges, 105 N. C., 49. If allowed, the amendment will relate back to the time of the filing of the answer. Lefler v. Lane, 170 N. C., 181, 86 S. E., 1022. If the prayer for general relief is deemed insufficient to support a decree of divorce a mensa, the same rule as to amendment applies. See, however, Lipe v. Trust Co., 206 N. C., 24, 173 S. E., 316; Bolich v. Ins. Co., 206 N. C., 144, 173 S. E., 320; McNeill v. Hodges, 105 N. C., 52; Presson v. Boone, 108 N. C., 78.

The decree allowing permanent alimony, not being supported by a judgment of divorce a mensa, cannot be sustained. The cause must be remanded for further proceedings.

Error and remanded.

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16 S.E.2d 834, 220 N.C. 191, 1941 N.C. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silver-v-silver-nc-1941.

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