14 S.E.2d 788 | N.C. | 1941
Plaintiff instituted divorce action against defendant, his wife, upon the ground of more than thirteen years separation. Defendant filed cross action against plaintiff, her husband, for divorce a mensa et thoro, wherein more than thirteen years separation is admitted and the further allegation is made of such treatment of her by him as to render her condition intolerable and life burdensome. In this cross action alimony and counsel fees are asked.
The cause came on for trial. Whereupon the court, without finding any facts, ordered the plaintiff to pay the defendant $50.00 counsel fees, and deferred the question of alimony until the trial of the cause. Included in this order was the following: ". . . said (counsel) fees to be paid before empanelling the jury to try the issues." To this order the plaintiff excepted and appealed, assigning error.
We are constrained to hold that the exception of the plaintiff is well taken. ". . . `whether the wife is entitled to alimony is a question of law upon the facts found,' reviewable on appeal by either party, and the `court below must find the facts' upon request." Caudle v. Caudle,
Error.