Setzer v. Setzer.Setzer v. Setzer.
- Reporters:
- , ,
- Before:
- Cooic
This action was brought for a divorc‘e a vinculo matrimonii fоr causes assigned under Tbe Code, sec. 1285-— Acts 1895, Cbap. 277, Acts 1899, Cbap. 211, and reviewed by this Court upon plaintiff’s aрpeal at tbe February Term, 1901 (128 N. C., 170).
Upon motion for judgment in tbe Superior Court upon tbe transcript from tbis Court, bis Honor rendered a decree in favor of plаintiff in conformity to tbe opinion of tbis Court, dissolving tbe bonds of matrimony, and adjudging that *297 defendant be taxed with tbe costs. Defendant resisted said decree, and moved for a decree for tbe sale of tbe land (adjudged to belong to ber as tenant in common, from wbicb nо appeal was taken) for partition and for an account to be taken of tbe rents and рrofits, including tbe value of tbe timber cut from said land by tbe plaintiff, and that defendant bave tbe care and сustody of tbe minor child, and for an allowance for tbe support of tbe child, and that tbe costs be tаxed against tbe plaintiff. His Honor overruled defendant’s motion, and she excepted and assigned as еrror, first, for not rendering decree as prayed for; second, for rendering decree dissolving tbe bonds of matrimony; third, for disallowing tbe allowance of ten dollars per month for tbe support of tbe minor child, mаde by tbe Court upon tbe trial; fourth, for ordering tbe cоsts to be taxed against tbe defendant; fifth, for refusing to allow to be read tbe notes of tbe evidence taken upon tbe trial of tbe action.
Defendаnt’s exceptions and assignments of error can not be sustained; for that no appeal was taken from tbe finding of tbe jury and judgment, that defendant was tbe equitаble owner of 50-145 undivided interest in tbe tract of land described in tbe answer. Tbe questions, of. divorce and costs were adjudicated in the former appeal, and can not again be beard by this Court in this action, except by petition to rehear under tbe rules of Court (Hendon v. Railroad Co., 127 N. C., 110; Pretzfelder v. Ins. Co., 123 N. C., 164), and tbe notes of tbe evidence .taken by tbе Judge upon tbe trial were irrelevant.
As to tbe third assignmеnt, it was within tbe discretion of tbe Court granting- tbe divorce tо commit tbe custody and tuition of tbe child to tbe fathеr or mother; or to one parent for a limited timе, and after tbe expiration of that time, to tbe other parent, and so on alternately (Code, sеc. 1570). It was likewise within tbe discretion of the Court, both be *298 fоre as well as after judgment, upon applicаtion after notice, etc., to make suck, orders respecting tke care, custody, tuition and maintenance of tke ckild as may be proper, аnd from time to time modify or vacate suck orders (Cоde, sec. 1296). In tkis case, kis Honor kas rendered a decree in tke exercise of kis discretion allowed by statute, and we see no error committed by kim, and none is pointed out.
There is no error, and tke judgment below must be
Affirmed.