Grant v. Grant, 159 N.C. 528 (1912)

Sept. 18, 1912 · Supreme Court of North Carolina

159 N.C. 528

CLAUDE GRANT v. ELLA EARLY GRANT.

(Filed 18 September, 1912.)

1. Special Appearance — Jurisdiction—General Appearance.

A special appearance may only be entered for the purpose of moving to dismiss for want of jurisdiction, and when it is made for the purpose of a motion to remove the cause to another county, the appearance is general, by whatever name the party may designate it.

2. Same — Waiver.

A party by entering a general appearance in an action remedies any irregularity in the service of the summons on him.

3. Divorce — Pleadings—Verification—Waiver.

An objection that a complaint, in an action for divorce, has not been verified in accordance with Revisal, sec. 1569, is jurisdictional.

4. Divorce — Pleadings—Verification—Amendments—Courts.

When the verification of the complaint in an action for divorce avers the truth of the matters therein in the usual form, and then sets forth the statutory requirements as to levity and collusion, etc., and especially when the complaint alleges no facts on information and belief, the verification will not be held as fatally defective; but, if otherwise, it may be remedied by an amendment allowed by the court which complies with the statute.

Appeal by defendant .from Cline, J., at April Term, 1912, of NORTHAMPTON.

This is an .action, commenced in Bertie County, to obtain an absolute divorce, and at the return term of the summons the defendant, through counsel, filed the following motion;

“The defendant, by her attorneys, appears specially in this action and moves to dismiss this action for want of jurisdiction of this court, for the following causes:

“1. That at the time this action was begun the plaintiff was not a resident of this county, but a resident of the county of Northampton, North Carolina, and is still a resident of that cóunty. '

“Wherefore the defendant prays -that this action be dismissed; but if the court be of opinion that the defendant is not entitled to have this action dismissed, then that it be removed to said Northampton County for trial.”

His Honor refused to dismiss the action, but found as a fact that the plaintiff was a resident of Northampton County, and on motion of the defendant, based on affidavits of Alex. Lassiter and others, filed by her, removed the action for trial in that county.

The defendant excepted and appealed.

One of the affidavits filed in support of the motion was made by the father of the defendant, in which, among other things, he says:

That he is the father of the defendant, Ella Early Grant, and that she left this State last summer to make her residence and domicile in a distant State beyond the borders of this State, where she still resides.

■ That she has written to him expressing a strong desire to be at this term of this court, but was unable to reach here in time to be present during this term.

That if tbe case is removed to Northampton County, N. C., for trial, she can. be at the next term of the Superior Court of that county; but if not removed, but continued to the next term of this court, she can be present at that term.

When the action was called foi trial in Northampton County, the defendant, through her counsel, filed the following motion:

“The defendant, Ella E. Grant, appears specially and through her attorneys, ’Wmborne & Wmborne and J. H. Kerr, alone to move and do hereby move to dismiss this action, for the fol- . lowing reasons:

“1. Because the summons has not been legally served, and this court has not acquired jurisdiction of the defendant.

“2. That the court has not jurisdiction of this action.”

The motion was denied, and the defendant excepted.

The motion to dismiss for want of jurisdiction is based upon the alleged failure to verify the complaint as required by Re-visal, sec. 1563.

The verification is as follows :

Claude Grant maketh oath that he is the plaintiff in the above-entitled cause, and that the foregoing' complaint is true of his own knowledge, except as to those matters therein stated on information and belief, and as to them he believes it to be true; that the said complaint is not made out of levity oy by collusion between plaintiff and his wife, nor for the mere purpose of being freed and separated from each other, but in sincerity and truth -for the causes mentioned in the complaint; that the facts set forth in the complaint as grounds for divorce have existed to his knowledge at least six months prior to the bringing of this action and filing this complaint, and he has been a resident of the State of North Carolina for more than two years next immediately preceding the filing of this complaint and bringing of this action. Claude GbaNt.

Sworn to and subscribed before me, this November 16, 1911.

W. L. LyoN,

GlerTc Superior Court.

After the denial of the motion, the defendant entered a general appearance and moved for a continuance.

There was verdict and judgment for the''plaintiff, and tie defendant appealed.- . •

Peebles & Hams and Winston &■ Matthews for plaintiff.

Winborne & Winborne for defendant.

Allen, J.

Tie effect of special and general appearances is fully considered in tie learned opinion of Justice Walker in Scott v. Life Association, 137 N. C., 517, in wiici it is ield tiat a special appearance cannot be entered except for tie purpose of moving to dismiss for want of jurisdiction, and tiat if tie motion affects tie merits, tie appearance is -general; and it is there said: “Tie test for determining tie character of an appearance is tie relief asked, tie law looking to its substance rather than to its form. If tie appearance is in effect general, tie fact tiat tie xmrty styles it a special apj)earance will not change its real character. 3 Cyc., pp. 502, 503. Tie question always is, what a party has done, and not what he intended to do. If tie relief juayed affects tie merits or tie motion involves tie merits, and a motion to vacate a judgment is such a motion, then tie appearance is in law a general one.”

It follows 'from this statement of.tie law tiat tie appearance in Bertie for tie puiqoose of making 'a motion to remove tie action to Northampton County was general, although styled special, and if so, it cured any defects in tie process and gave tie court jurisdiction of tie person of the defendant.

If, however, there was any doubt upon this question, it ax> pears in tie record tiat tie defendant afterwards formally entered a general appearance in Northampton and moved for a continuance, wiici made a service of tie summons unnecessary.

Tie other ground for tie motion to dismiss is on account of alleged defects in tie verification of tie complaint.

It is true, as contended by tie defendant, tiat an objection to tie verification of a complaint in an action for divorce is jurisdictional (Hopkins v. Hopkins, 132 N. C., 23; Johnson v. Johnson, 142 N. C., 462), but in our ox>inion tie verification in this case substantially complies with tie statute, and particularly as tie complaint alleges no facts on information and belief, but if it did not, tie judge states tiat tie plaintiff is allowed to amend the affidavit of verification by adding, “That the facts set forth in the complaint are true to the best of affiant’s knowledge and belipf,” which conforms to the words of the statute. This disposes of both appeals.

There is no error.

Affirmed.