Summary
In Nichols v. Nichols, 128 N.C. 108, it is held that the provision in the statute (The Code, sec. 1287) that in an action for divorce the complaint should be accompanied by an affidavit setting forth that the facts relied upon as ground for divorce had existed to plaintiff's knowledge six months, was mandatory, and that filing such affidavit was essential to give the court jurisdiction of the action.
Summary of this case from Williams v. SmithOpinion
(Filed 9 April, 1901.)
1. DIVORCE — Affidavit — The Code, Sec. 1287 — Jurisdiction.
All the requisites mentioned in the affidavit required by sec. 1287 of The Code are mandatory, and a failure to set out these averments in the affidavit ousts the Superior Court of jurisdiction.
2.JURISDICTION — Exceptions and Objections — supreme Court.
Exception to the jurisdiction may be made for the first time in the Supreme Court.
ACTION by Dicey Nichols against William Nichols, heard by Judge E. W. Timberlake and a jury, at November Term, 1900, of FORSYTH. From a judgment for plaintiff, the defendant appealed.
Jones Patterson, for the plaintiff.
Watson, Buxton Watson, for the defendant.
The appellant, in this Court, moved to dismiss the action on the ground that the Superior Court did not have jurisdiction upon the complaint, to try the case. the action was for divorce a vinculo, and the affidavit accompanying the complaint did not contain one of the averments prescribed in The Code, Sec. 1287. There was omitted from the affidavit the statement that the facts set forth in the complaint as ground for divorce had existed to plaintiff's knowledge at least six months prior to the filing of the complaint. The question, then, is presented, Do the matters which are required to be set forth in petitions for divorce, The Code, sec. 1287, affect the jurisdiction of the Court, or are they matters merely (109) directory, and if not complied with, demurrable only, and cured by verdict and judgment in cause if not demurred to? There is no fault found with the complaint in the case. In Dickinson v. Dickinson, 7 N.C. 327, this Court said, "It should, however, be distinctly stated in the affidavit that the petitioner knew of the facts charged six months before the filing of the petition; and this that the application may appear to the Court not dictated by passion or resentment but an affair of deliberation." That point was decided, as the Court said, that it might serve to prevent fruitless litigation and settle the practice in other cases; the case, however, had been disposed of on another point upon which the argument in chief had been made. It is true that that decision was rendered upon the statute of 1814, brought forward in the Revised Statutes, chap. 39, and that section 6 of that act declared that, "No petition for divorce should be sustained unless the petitioner stated and swore to the facts, the ground of his or her complaint had existed to her knowledge at least six months prior to the filing of the petition." That section also declared that no person should be entitled to sue under the act unless he or she should have resided within the State three years immediately preceding the exhibition of his earlier petition. Nevertheless, we are of the opinion that although the prohibitory words in section 6 of the act of 1814 in reference to thee maintenance of actions in divorce, unless the requirements of the section are complied with, are not used in sec. 1287 of The Code, yet the materiality of these requisites is not lessened so as to affect the matter of jurisdiction of the Courts. It is necessary in order that the Courts may take jurisdiction of the matter of divorce that each and all of the requisites mentioned in the affidavit required by The Code, sec. 1287, shall be set out and sworn to by the plaintiff. The requirements are mandatory. The matter of divorce not only affects the parties immediately concerned, but the (110) whole fabric of our social life; and the Courts, before they will act, must see that a fit case is before them to be heard, and that can not be seen under our statute unless all the matters required by sec. 1287 of The Code are set out in the affidavit accompanying the complaint, as well as that the complaint should set pit a good cause of action. The policy of the law in requiring the averment in the affidavit that the knowledge of the facts which are alleged as the grounds for divorce have existed six months prior to the filing of the complaint, appears in the quotation which we have made from the opinion of the Court in Dickinson v. Dickinson, supra.
The motion was properly made in this Court, although made for the first time. Ladd v. Ladd, 121 N.C. 118.
The action is dismissed.
Cited: Martin v. Martin, 130 N.C. 28; Moore v. Moore, Ib., 338; Hopkins v. Hopkins, 132 N.C. 23; Clark v. Clark, 133 N.C. 30; Williams v. Smith, 134 N.C. 252.