Bond v. Bond, 235 N.C. 754 (1952)

June 11, 1952 · Supreme Court of North Carolina
235 N.C. 754


(Filed 11 June, 1952.)

1. Appeal and Error § 6c (2)—

An exception to the judgment presents only the questions whether the facts found support the judgment and whether any error of law appears upon the face of the record.

2. Divorce and Alimony § 12—

Upon the hearing of plaintiff’s motion for alimony and counsel fees pendente lite in her suit for subsistence without divorce, G.S. 50-16, the finding of the court that defendant had obtained a valid decree of absolute divorce in another state supports a denial of the motion for alimony pendente lite, but it is error for the court also to dismiss the action, since the cause was not before the court on final hearing on the merits and the court was without jurisdiction to dismiss it.

Appeal by plaintiff from Williams, JOctober Term, 1951, ObaNGE.

Modified and affirmed.

Civil action for alimony without divorce and to recover the value of certain personal property, heard on motion for alimony and counsel fees fendente lite.

Plaintiff alleges a cause of action for subsistence without divorce under Gr.S. 50-16 and also for the recovery of the value of certain personal property belonging to plaintiff and appropriated by defendant to his own use. She prays an order for alimony without divorce and for judgment for the value of said personal property.

Defendant, answering, enters certain denials, pleads certain defenses, and specifically pleads a decree of divorce entered in the Circuit Court of Yolusia County, Florida, a court of competent jurisdiction.

*755Tbe cause came on for bearing in tbe court below on plaintiff’s motion for alimony and counsel fees pendente lite. After bearing tbe motion on affidavits, tbe court below found as a fact tbat defendant is a resident of tbe State of Florida and tbat be obtained a valid decree of divorce in tbat State 1 September 1949. It thereupon concluded tbat “defendant’s plea in bar of tbe plaintiff’s right to proceed in this action should be sustained” and entered judgment dismissing tbe action at tbe cost of tbe plaintiff.

L. J. Phipps for plaintiff appellant.

Paul B. Edmundson, John S. Peacoclc, and Bonner D. Sawyer for defendant appellee.

Barnhill, J.

Tbe exception to tbe judgment entered presents for decision only two questions: (1) Do tbe facts found support tbe judgment, and (2) does any error of law appear upon tbe face of tbe record? Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609; Simmons v. Lee, 230 N.C. 216, 53 S.E. 2d 79, and cases cited; Surety Corp. v. Sharpe, 233 N.C. 642, 65 S.E. 2d 138; S. v. Raynor, ante, p. 184.

Upon tbe findings made, tbe court correctly denied tbe motion for alimony pendente lite. But tbe cause was before tbe court for bearing of tbat motion only. It is so recited in tbe judgment. “It was not before tbe court on final bearing on tbe merits. Hence tbe court was without jurisdiction to dismiss tbe action . . .” Briggs v. Briggs, 234 N.C. 450.

Tbe judgment entered must be modified so as to limit it to a denial of alimony pendente lite, and tbe cause must be reinstated on tbe docket for trial. As so modified, tbe judgment is affirmed.

Modified and affirmed.