Opinion
(Filed 3 November, 1937.)
Divorce § 13 —
In the husband's suit for divorce, in which the wife files answer demanding alimony pendente lite and alimony without divorce, it is error for the court, upon the hearing for alimony pendente lite, C. S., 1666, to issue an order for alimony without divorce under C. S., 1667.
APPEAL by plaintiff from Grady, J., at Chambers, from DUPLIN.
J. D. Johnson, Jr., for plaintiff, appellant.
Butler Butler for defendant Hallie Mae Adams, appellee.
Action for divorce on alleged abandonment and two years separation.
Plaintiff alleged that he and defendant were married on 12 May, 1918; that on 19 October, 1931, the defendant without cause willfully abandoned plaintiff and has since lived separate and apart from him, and that he has been a resident of the State for more than two years next preceding the institution of this action.
Defendant filed answer in which she admitted marriage on 12 May, 1918, and that plaintiff had resided in the State, but denied abandonment. As further defense and cross action defendant alleged that plaintiff on numerous occasions had willfully and without cause abandoned the defendant and the four minor children of their marriage, and failed, neglected and refused to provide the necessary subsistence for her and for them in accordance with his means and condition in life; that defendant is without means to provide reasonable subsistence for herself and children pending the action and to defend the same; that the plaintiff is "a man of property," owning certain valuable real and personal property. She thereupon prays that plaintiff's action for divorce be dismissed and that she be awarded custody of the children and alimony without divorce, alimony pendente lite, and allowance for reasonable attorney's fees.
From order dated 3 June, 1937, plaintiff appeals to the Supreme Court and assigns error.
The order to which this appeal relates was made under C. S., 1667, and is in error. Dawson v. Dawson, 211 N.C. 453, 190 S.E. 749. The same is stricken out. The cause is remanded to the end that the facts may be found and further proceedings had under C. S., 1666.
Error and remanded.