Nichols v. Nichols.
38 S.E. 296
N.C.
1901
Check Treatment
MoNtgomeby, J.

Thе appellant, in this Court, moved to-dismiss the action on the ground that thе 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 оf the averments-prescribed in The Code, Section 1287. There was omitted from the affidavit the statement that the facts ‍‌‌​​‌​‌‌​​‌‌​‌‌​​​​‌​​‌​‌‌​​‌‌​​​‌​‌​​​​‌​​‌‌‌​​‍set forth in the-cоmplaint as ground for divorce had existed to plaintiff’s knowledge аt least six months prior to the filing of the complaint. The question, then, is presented, Do the matters- *109 which are required to be set forth in petitions for divorce, The Code, section 1287, ’aííeot the jurisdiction оf the Court-, or are they matters merely directory, and ‍‌‌​​‌​‌‌​​‌‌​‌‌​​​​‌​​‌​‌‌​​‌‌​​​‌​‌​​​​‌​​‌‌‌​​‍if not comрlied with, demurrable only, and cured by verdict and judgment in the 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 Count sаid, “It should, however, be distinctly stated in the affidavit that the petitioner knеw of the facts charged sis 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; thе ca-se, however, had been disposed of on another- point upon which the argument in chief had been made. It is true that that decision Avas rendered upon the statute of 1814, brought forward in the Revisеd Statutes, chapter 39, and that section 6 of that act declared that, “No petition for divorce should he sustained unless the petitioner statеd and swore to the facts, the ground of his or her complaint had еxisted 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 Statе three years immediately preceding the exhibition of 'his earliеr petition. Nevertheless, we are of the opinion that although the prohibitory words in section 6 of the act of 1814 in reference to the maintenance of actions in divorce, unless the requirements of the section are cmplied with, are not used in sectiоn 1287 of The Code, yet the materiality of these requisites is not lessened so- as to affect the matter of jurisdiction of -the Counts. It is necеssary in order that the Courts may take jurisdiction of the matter of div’o-rce that each -and all of the requisites mentioned in the affidavit required by The Code, sec. 1287, shall be set out and sworn to *110 by the plaintiff. Tlie requirements are mandatory. The matter of divorce not only affects tibe parties immediately concerned, but the whole fabriс 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 section 1287 of Thе Code are¡ set out in the affidavit accompanying the cоmplaint, as well as that the complaint should set out a good сlause 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 tire complaint, appears in tire quotation which we have made from tire 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.