Opinion
(December Term, 1853.)
No appeal will life from an order of the Court of Equity under the act of 1852, allowing alimony, pendente lite, to the wife, who sues for a divorce and alimony.
APPEAL from an interlocutory order made by his Honor, Judge MANLY, in a case for a divorce and alimony at the Court of Equity for JOHNSTON, at Fall Term, 1853.
Q. Busbee, for plaintiff.
Miller, Bryan and Moore, for defendant.
At the Spring Term, 1853, the bill in this case was filed, and the following term the defendant demurred, and at the same time the plaintiff moved under the act of 1852 for a reasonable and sufficient alimony during the pendency of the suit, which was allowed her, (119) and the defendant being satisfied, prayed an appeal to the Supreme Court, which was allowed. As the facts contained in the proceedings are not at all considered in the opinion of the Court, it is deemed unnecessary to state them.
The bill is filed for a divorce from bed and board and for alimony. The defendant demurred, and at the same term the presiding Judge decreed to the plaintiff the amount set forth in the pleadings, and from that interlocutory order permitted the defendant to appeal to this Court.
The appeal was granted under sec. 23, ch. 4, Rev. Stat., and if that statute stood alone, the order would have been correct and we should have been under the necessity of looking into the bill and of judging for ourselves whether it presented such a case as entitled the plaintiff to the relief she sought. For if the bill did not present such a case upon its face as to entitle her to the main relief sought, the one incident to it could not be granted. But we are not called to this duty. We are of opinion that the appeal was improvidently granted.
The Legislature, as its session in 1852, ch. 53, p. 110, directed that when a bill is filed for a divorce and alimony, the Court may, at the term when the process is returned, grant to the plaintiff a sufficient sum for her support. Before the passage of this act it had been settled by this Court ( Wilson v. Wilson, 19 N.C. 377) that the Court, under such a bill could not grant alimony before the final decree, upon the ground that if upon the hearing it should appear that the complainant was not entitled to any decree for a divorce, the alimony allowed would (120) be so much lost to the defendant, as the plaintiff is not required to give any security for its return. The act of '52 seems to have been passed to alter the law on this subject, and it gives no right of appeal. To have done so would have entirely defeated the benevolent object of its framers.
A husband by his brutal conduct to his wife, either in outrages to her person or by bringing a strumpet into his family, forces her from his house and she is compelled to throw herself upon the charity of friends and relations and to appeal to the laws of the country. During the pendency of the suit, which may continue for a year or more, she must be supported, and the law says her husband, the worker of the wrong, shall do so. To allow an appeal to this Court in such a case would be virtually to condemn her to starve. This certainly was not what the Legislature meant. The relief as to the alimony, which they contemplated, was an immediate one, upon the ground that until the contrary appeared the plaintiff was entitled to be supported by her husband out of his estate during the controversy. That the alimonial relief was intended to be immediate is shown by the provision of the act; it was to be allowed at the return of the process. We do not mean to say that it must then be allowed, but that it may. That no appeal was intended by the act of 1852 is further proved from the other provisions contained in it. It provides that the amount of alimony allowed may be increased or diminished by the Court at any time upon a proper application. There is no necessity, then, for any appeal, and the act does not warrant it.
Holding, as we do, that the defendant had no right to appeal, we have entered into no consideration of the bill and demurrer, nor into the amount of the alimony granted, or the fund out of which it is to be paid.
PER CURIAM. The appeal is dismissed as improvidently granted. (121) The defendant must pay the costs of this Court.
Cited: Taylor v. Taylor, 46 N.C. 531; Everton v. Everton, 50 N.C. 206; Morris v. Morris, 89 N.C. 112; Moore v. Moore, 130 N.C. 334-6.
NOTE. Since Rev. Code, ch. 39, sec. 15, an appeal lies by either party, Moore v. Moore, 130 N.C. 336.