242 N.C. 642 | N.C. | 1955
It is difficult to understand why the plaintiff appealed from the ruling of the court below on the defendant’s motion to strike, lie still has in his pleadings his plea with respect to acts of adultery committed by the defendant, for whatever purpose it may serve in connection with any motion that might be made for alimony pendente lite. G.S. 50-15; Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857; Oldham v. Oldham, 225 N.C. 476, 35 S.E. 2d 332. A plea of adultery, however, if found by the court to be true, does not preclude the court from allowing the wife reasonable counsel fees for the prosecution or defense of an action for divorce. G.S. 50-16; Oldham v. Oldham, supra; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436.
The plaintiff contends, however, that no part of his pleadings could be stricken since the motion to strike was not made prior to the filing of the demurrer, citing G.S. 1-153. The appellant seems inadvertent to the fact that when a motion to strike is not made in apt time, the court has discretionary power to allow or deny such motion, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion. Tucker v. Transou, 242 N.C. 498, 88 S.E. 2d 131; Parrish v. R. R., 221 N.C. 292, 20 S.E. 2d 299.
The plaintiff excepts to and assigns as error that portion of the order of the court requiring him to verify his complaint as required by law. Evidently, the court had in mind G.S. 50-8 before it was amended. The complaint has been verified in substantial compliance with G.S. 1-145. This is all that is now required in actions for divorce by G.S. 50-8, as amended by Chapter 165 and Chapter 590 of the 1947 and 1951 Session Laws of North Carolina respectively. Hence, the exception seems to be well taken. Therefore, the order will be modified in this respect and affirmed as to the remainder thereof.
Modified and affirmed.