232 N.C. 659 | N.C. | 1950
The defendant filed a demurrer ore terms upon the reading' of the pleadings upon the ground that the complaint did not' state facts sufficient to constitute a cause of action in that it was not alleged that the husband separated himself from the wife and failed to provide her with the necessary subsistence according to his means and condition in life or that he had become a spendthrift or a drunkard or was guilty of any misconduct or act that constituted grounds for divorce, either absolute or from bed and board.
His Honor overruled the demurrer and this Court is in agreement with that ruling. We are of the opinion that the alleged facts contained in the pleadings of the plaintiff are sufficient to withstand the demurrer, are sufficient to constitute a cause of action, and we so hold. Barwick v. Barwick, 228 N.C. 109, 44 S.E. 2d 597; Trull v. Trull, 229 N.C. 196, 49 S.E. 2d 225, and cases therein cited.
But upon the coming in of the verdict the defendant in apt time moved to set it aside and for a new trial, which motion was overruled, and defendant excepted. Judgment was signed, as appears in the record, awarding the plaintiff alimony, to which judgment the defendant duly excepted, and appealed, assigning error. And thereupon the question arises as to whether or not the answers to the issues submitted to the jury support the judgment.
We are of the opinion that they do not, and so hold.
It was stipulated during the trial of the cause, and the pleadings support the stipulation, that the grounds for divorce from bed and board relied upon by the plaintiff are under subsections 1, 3, 4 and 5 of Sec. 7, Chapter 50, of the General Statutes. Those sections are as follows:
“G.S. 50-7. Grounds for divorce from bed and board. — The Superior Court may grant divorce from bed and board on application of the party injured, made as by law provided, in the following cases :
“(1) If either party abandons his or her family.
“(3) By cruel or barbarous treatment endangers the life of the other.
“(4) Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.
“(5) Becomes an habitual drunkard.”
The plaintiff’s claim for alimony without divorce under G.S. 50-16 was based upon the above sections of G.S. 50-7, and the issues submitted to the jury should have been framed upon the allegations in the pleadings and the evidence introduced under those allegations, with reference to the provisions of G.S. 50-7 upon which the plaintiff relied as grounds for divorce from bed and board.
In an action by a wife against her husband for divorce from bed and board, she must not only set out with particularity the acts of cruelty on the part of the husband upon which she relies, but she is also required to
In this connection, although issues No. 2 and No. 4 are to some extent ■overlapping, the answer to both of them in the negative, under the charge ■of his Honor with reference to them, is a finding that the plaintiff was not free from fault or blame with reference to her marital difficulties. Hence the affirmative answer to the 6th issue would not entitle the plaintiff to an award of alimony. Page v. Page, 161 N.C. 170, 76 S.E. 619. Therefore, the answers to the issues submitted will not support the judgment.-
We are of the opinion that for the reasons stated the defendant is ■entitled to a new trial, and it is so ordered.
It is, therefore, unnecessary to pass upon the other questions raised by the appeal.
New trial.
