Muse v. Muse, 84 N.C. 35 (1881)

Jan. 1881 · Supreme Court of North Carolina

84 N.C. 35

CHARLES B. MUSE v. CYNTHIA MUSE.

Divorce and Alimony.

ffn an action ior divorce, the wife in her answer denied the allegations of the complaint and charged the husband with abandoning and failing to provide for herself and children, and prayed for a divorce from bed and hoard and moved for an allowance; on the hearing of which motion the plaintiff denied he had any property, hut admitted he was an able bodied man'; and thereupon the court'oíderéd an allowance without inquiry into the value of his -property'-; Held no error.

Civil Action for di-varce ee vinculo matrimonii fried aft Pall Term,. 1879; of Ca&abj&us- Superior Court, before Bux-ton, J.

The plaintiff brings- this action for a- divorce, and in his-complaint alleges that the defendant,, hi's wife, has been* guilty of adultery. His wife in her answer denies every allegation of her gúilt, and in túrn charges the plaintiff with having abandoned'her in the month of February, 1877,. since which time he has in no wise contributed to the support of herself, or children (of whom there are five, all infants) ; that by dint of great industry and the aid of friendo she has barely been able to support them, and is- wholly without means necessary to their maintenance a-nd the de-fence of the plaintiff’s suit;; and thereupon she prays for af divorce from bed and- board and for an allowance, such as-might be deemed right, with which to' defend the action-. At fall term, 1879; the defendant moved- the court to make' her such allowance, having given due notice of her intention to make the motion to the plaintiff, who appeared and resisted the same. On the hearing, the- plaintiff “"denied that he had any property, but conceded himself to-’be an« able bodied man.” His Honor granted the motion of thewife a-nd directed the husband to pay into court three dollars per month for her use and benefit. The plaintiff complains- of this order, because it was made without any inquiry into the ex-tent and value of his property, and appeals-therefrom to- this court.

Mr. W. BL Bailey, for plaintiff,

No counsel for defendant,

EufpI'N, J.

We see no error iti the order complained of) and certainly none for the reason assigned. Why inquire' into his property and its value, when he admits he has-none ?•

A husband is not excused from the maintenance .of bis wife because be lacks an -estate. He must labor if need be for her support.; and if reluctant, it is fortunate that it happens, as in this instance, that he may be compelled to do so.

If His Honor ¡had fixed the -wife’s allowance at such ;a sum as to leave .any doubt-as to the .ability of the plaintiff rfairly to earn the amount,..and.at the same time provide for bis own necessities, it could be seen that some good could ■come-of an inquiry into his ability to .work.and the probable amount of his earnings. But as-the court adopted the ■very minimum that “ an .able bodied man"’ can earn, ten •cents a day, there .can be no error of which the plaintiff can .complain, however his wife might.

No error. Affirmed.