Opinion
(June Term, 1866.)
Where the defendant in a petition for divorce and alimony, not having been served with process, was present however in court at the term when the petition was filed, and made objection personally to any order granting alimony: It was held, that such presence and action did not give to the cause the character of a lis pendens; and, therefore, that at such stage no order for alimony could be made.
PETITION for divorce a vinculo and for alimony.
No counsel in this court for the petitioner.
Haywood, for the defendant.
The petition was filed to the Spring Term, 1866, of WATAUGA. It stated various acts of adultery and of desertion upon the part of the defendant; but instead of alleging these things directly, frequently repeated the expression, "your petitioner would show," etc.
The record transmitted to this court stated, among other things: "At this term of the court the petition was presented to the judge, and his fiat [made] that process issue to the defendant. The petition was then filed in court, and a motion made that alimony pendente lite be allowed petitioner. The defendant, being present in court, admitted that the matter set forth in the petition was sufficient to entitle petitioner to the relief prayed for, but resisted the motion, upon the ground (64) that the court could not decree alimony pendente lit [lite], until a copy of the petition and subpoena had been served upon him. The court was of a different opinion, and allowed petitioner the sum of fifty dollars as alimony pendente lite, and awarded execution to issue for the same." Whereupon the defendant appealed.
In the case before us the petitioner came into court and read her petition to the judge, and he "ordered that process issue to the defendant." "The petition was then filed, and a motion made for alimony," which was allowed. The defendant being present, but not having been served with process, not yet entering an appearance, was allowed by the court to object to its power to decree alimony at that stage of the proceedings. But his Honor, being of opinion that he had the power, allowed alimony, and ordered execution to issue for the same. The defendant prayed for and obtained an appeal.
The statute, Rev. Code, ch. 39, sec. 15, provides that, in petitions for divorce and alimony, the court may "at any time pending the suit," decree reasonable alimony.
The question is: Was the suit pending? If it was, then his Honor had the power to allow alimony. If it was not pending, then he had no such power.
"It is no suit pending till the parties appear, or have been served to appear, but only a piece of parchment thrown into the office, which may be there forever, and never come to a suit." Moore v. Welsh Copper Co., 1 Eq. Ca. Ab., 39.
In a plea of "Former suit pending," it must be averred "that there have been proceedings in the suit, as appearance, or process requiring appearance, at the least." 2 Dan. Ch. Pr., 726; (65) Mitford Ch. Pl., 247. In the form given of a "Plea of a former suit pending," in Curtis' Equity Precedents, 164, it is said, "and this defendant appeared, and put in his answer to the said former bill," etc. So, there can be neither retraxit nor nonsuit, until the return term, when the plaintiff is demandable. See Eagin v. Musgrove, 61 N.C. 13, at this term, and the cases there cited.
It seems therefore to be settled that a suit is not pending until the return term, or at least until service of process.
In cases of divorce, alimony ought not to be allowed until the return term, and after the service of the process; for, although the petitioner's claim to alimony is to be determined by the judge from the allegations of the petition only, yet, it is settled by Shearin v. Shearin, 58 N.C. 233; Taylor v. Taylor, 46 N.C. 528, that not only the answer but affidavits may be heard as to the amount of alimony proper to be allowed. The utmost reach of indulgence has been allowed by the Legislature and the courts when alimony is decreed upon the mere allegations of the petitioner; but to allow the amount of alimony, as well as the right to it, to depend upon the statements in the petition, might in all, and doubtless would in many cases, work great hardship. The defendant therefore ought to be heard, at least upon the amount of alimony; and this can only be after he is brought in by the service of process.
The similarity of the language used by the judge in stating this case, to that of this court in Taylor v. Taylor, supra, induces us to believe that his Honor acted in deference to what he supposed to be the proper construction of that case. It will be found, however, that case was decided before the Revised Code was enacted, under the statute of 1852, which gave the court power, at the return term, or at any time thereafter, to allow alimony. The court, in commenting upon that (66) statute, said, "that it was the duty of the court, at the return term, or at any time when application is made," to allow alimony. But it is evident that what was meant by "at any time," was, at any time subsequent to the return term. And in that case the fact was that the application was subsequent to the return term.
We have not overlooked the fact that, in an appeal to this court from an order for alimony, this court is restricted by the statute from looking into anything except the petition itself, in order to determine the petitioner's right to relief. But the present is a question as to the power of the court over the subject at the time; and we think that his Honor had not the power to allow alimony at that time, because the suit was not pending.
It was insisted on in the argument that the petition is so inartificial in form that no decree can ever be founded upon it; that the facts are not alleged, but only stated hypothetically. The haste with which pleadings have to be prepared upon the circuit affords a reasonable excuse for an occasional absence of accuracy and precision. But a radical departure from ordinary forms is inexcusable. It embarrasses the court and jeopardizes the interests of suitors. As the case has to go back, the petition will probably be amended.
The interlocutory order allowing alimony is
PER CURIAM. Reversed.
Cited: Lynch v. Lynch, ante, 46; Morris v. Morris, 89 N.C. 113; Pettigrew v. McCoin, 165 N.C. 474, 475.
(67)