98 S.E.2d 17 | N.C. | 1957
Jennie E. BEESON
v.
Elmer BEESON.
Supreme Court of North Carolina.
*18 J. V. Morgan, Edward N. Post, High Point, for plaintiff appellant.
Coltrane & Gavin, Asheboro, for defendant appellee.
WINBORNE, Chief Justice.
This is the question determinative of this appeal: Where a husband has instituted an action against his wife for absolute divorce on legal ground, under G.S. § 50-6, is an action thereafter instituted by the wife against the husband for alimony without divorce under provisions of G.S. § 50-16 abatable by reason of the pendency of the prior action by the husband?
A negative answer is found in the language of G.S. § 50-16, as amended by Chapter 814 of 1955 Session Laws of North Carolina. Prior to the enactment of the amendment G.S. § 50-16, formerly C.S. 1667, provided in pertinent part that "if any husband shall separate himself from his wife and fail to provide her * * * with the necessary subsistence according to his means and condition in life * * * the wife may institute an action in the superior court of the county in which the cause of action arose to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband * * *."
As so worded this Court uniformly held that alimony without divorce under the statute, G.S. § 50-16, formerly C.S. 1667, could be granted only in an independent suit. See among other cases Silver v. Silver, 1941, 220 N.C. 191, 16 S.E.2d 834; Shore v. Shore, 1942, 220 N.C. 802, 18 S.E.2d 353, 354.
In the Shore case, supra, this Court concluded with this declaration: "Here we are dealing with an act of Assembly complete within itself, which is not to be set at naught by the simple device of pleading."
And the amendment of 1955, inserted in the statute G.S. § 50-16, after the quoted portion recited, this clause: "Or she may set up such cause of action as a cross action in any suit for divorce, either absolute or from bed and board; and the husband may seek a decree of divorce, either absolute or from bed and board, in any action brought by his wife under this section."
It seems clear from the language used in this amendment that the General Assembly intended, without disturbing the right of the wife to an independent action, to give to her an alternative method of procedure which she might use at her election. The alternate is permissive, but not mandatory. And the statute is still complete in itself and is not to be set at nought by simple device of pleading.
The judgment abating the action is
Reversed.
