Lynch v. Lynch, 62 N.C. 46, 1 Phil. Eq. 46 (1866)

June 1866 · Supreme Court of North Carolina
62 N.C. 46, 1 Phil. Eq. 46
MARY LYNCH v. AARON LYNCH

MARY LYNCH v. AARON LYNCH.

Upon appeals from interlocutory orders granting alimony pendente lite, the Supreme Court founds its decree on a re-examination of the petition only.

Where such petition alleges adultery, it is a sufficient foundation for the order appealed from.

Petition, for divorce and alimony, filed at Spring Term, 1864, of the Court of Equity for Stokes county.

The petition alleged adultery and other matters as ground for the relief desired. These allegations were denied, specifically and distinctly, by the answer.

At Fall Term, 1864, after the answer had been filed and replication thereto taken by the petitioner, upon motion of the latter the court allowed her alimony pendente lite, and from that decree the defendant appealed.

Gilmer, for the petitioner.

MoreJiead, for the defendant.

Reade, J.

The 15th section of ch.. 39, of the Rev. Code, authorizes the Superior Courts to decree alimony at any time “pending the suit;” for the meaning of which phrase we may refer to Simmons v. Simmons, post p. 63. In the present case his Honor made the decree at the return term, after the coming in of the answer; and, in” considering the appeal that has been taken, this court is allowed by the ex*47press words of the section above cited, to “ re-examine only the sufficiency of the petition to entitle the petitioner to relief.” That petition, among other things, alleges that the defendant is guilty of adultery. If this he true, it is”sufficient to entitle the petitioner to relief.

The alimony in question was allowed in 1864, and its amount may he excessive now ; hut it will he within the power of the court below to revise that allowance, and adjust it to present circumstances.

The interlocutory order must he affirmed.

This opinion will he certified to the court below.

Per, Curiam.

Ordered accordingly.