Smith v. Smith

226 N.C. 506

Opinion

Winborne, J.

The only exception brought forward on this appeal is to the signing of the judgment from which appeal is taken. This presents only the face of the record for inspection or review, and when the judgment is supported by the record the exception must fail. See King v. Rudd, ante, 156, 37 S. E. (2d), 116, citing among others Rader v. Coach Co., 225 N. C., 537, 35 S. E. (2d), 609. See also Fox v. Mills, Inc., 225 N. C., 580, 35 S. E. (2d), 869; Lee v. Board of Adjustment, ante, 107, 37 S. E. (2d), 127; Redwine v. Clodfelter, ante, 366, 38 S. E. (2d), 203; In re Collins, ante, 412, 38 S. E. (2d), 160.

Applying this rule of law to the present appeal, upon the facts found, which are supported by the record, the exception must fail, and the judgment be upheld.

The provision of the statute, G. S., 50-3, that in all proceedings for divorce the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides, is not jurisdictional, but relates to venue, and may be waived. If an action for divorce be instituted in any other county in the State, the action may be tried therein, unless the defendant before the time of answering expires demands in writing that the trial be had in the proper county. See Davis v. Davis, 179 N. C., 185, 102 S. E., 270.

Also, there is no specific requirement of the statute, G. S., 1-99, that an order for the publication of notice of summons state that the newspaper in which the publication is ordered to be printed is the one “most likely to give notice to -the person to be served.” Moreover, an order for publication of notice of summons being made by a court of record there is a presumption in favor of the rightfulness of its decrees, and it will be presumed that the statutory findings and determination had been made without specific adjudication in tie' order to that effect. See Leadnote in Elias v. Comrs. of Buncombe, 198 N. C., 733, 153 S. E., 323.

Furthermore, the court had the power to allow the amendment nunc pro tunc to the original order for publication of the summons so as to “direct the doing of that which had already been done,” that is, to conform with the facts as to what had been done. See the statute, G. S., 1-163, relating to amendments in discretion of court.

Affirmed.