Griffith v. Griffith, 89 N.C. 113 (1883)

Oct. 1883 · Supreme Court of North Carolina

89 N.C. 113

HONORA GRIFFITH v. ROBERT GRIFFITH.

Divorce and Alimony.

1. In divorce, a complaint alleging that defendant has abandoned his wife and turned her out of doors ; that he has treated her cruelly and barbarously, so as to endanger her life, and has offered such indignities to her person as to render her condition intolerable and life burdensome, states facts constituting a cause of action.

2. Alimony pendente lite may be granted, not simply upon complaint and affidavit of the plaintiff, but upon a finding by the judge (after considering the counter affidavit or answer of the defendant) that the facts alleged in the complaint are true, and entitle the plaintiff to the relief demanded. Tins Code, §1291. And the facts found must be set out in the record of the case on appeal.

(Erwin v. JZrwin, 4 Jones’ I£q., 82, cited and approved).

Civil ACTION for divorce a mensa et thoro heard afc Spring Term, 1883, of Mitchell Superior Court, before Gudger, J.

Upon the complaint and affidavit of the plaintiff, His Honor made an order for alimony pendente lite, and thereupon the defendant moved to vacate the order upon the ground of a want of notice to him, and the court sustained the motion. The case then states that the defendant waived the five days’ notice to which he was entitled under the statute, and that the plaintiff renewed her motion for alimony. This latter motion was refused by the court upon the ground that the complaint and affidavit do not state a cause of action, and from this ruling the plaintiff appealed.

Messrs. E. G. Smith and W. H. Malone, for plaintiff.

No counsel for defendant.

MeRRIMON, J.

The plaintiff not only alleges in general terms that the defendant has abandoned her, that he has in effect turned her out of doors, that he has treated her cruelly and barbarously, so as to endanger her life, and has offered such indignities to her person as to render her condition intolerable and life burdensome, but she avers facts in detail, that, if she can prove them to be true, certainly make a strong case in her favor, and the case contemplated by the statute, on which relief ought to be granted. Ti-ie Code, §1286.

The court did not find that the allegations in the complaint were true or otherwise, and we must take it that it denied the motion for alimony pendente lite, upon the ground, that upon the face of the complaint the plaintiff did “not state facts sufficient to constitute a causo of action.”

In this we think the court erred. The facts alleged do constitute a cause of action, and the court ought to have proceeded to find whether the allegations -were substantially true or false. The motion is not granted simply upon the complaint and affidavits of the plaintiff. Before the court can grant it, it must find the facts alleged in the complaint “ to be true and to entitle her to the relief demanded in the complaint,” and such findings of the court must be set forth in the record, to the end, either party may, if he or she shall sec fit, appeal to this court. The defendant will be entitled to be heard in reply to the complaint, by answer or affidavits. The Code, §1291; Morriss v. Morriss, ante; Erwin v. Erwin, 4 Jones’ Eq., 82.

There is error; the order denying the motion must be reversed.

Error. Reversed.