79 N.C. 572 | N.C. | 1878
The only question now before this Court is as to the legality of the order made by the Judge in the Superior Court, requiring the plaintiff to pay $40 per month thereafter to be used by the defendant in paying the expenses of her defence and for her subsistence during the pendency of the action or until otherwise ordered. *428
The claim of a wife to alimony under the circumstances existing in this case depends on the proper construction of sec. 38, ch. 193, Laws 1871-'72 (Bat. Rev., ch. 37, sec. 10.) This section says in brief: If any married woman shall apply to a Court for divorce, and set forth in her complaint such facts as if true will entitle her to it, and it shall appear to the Court that she has not sufficient means whereon to subsist during the prosecution of her suit, and to defray the expenses thereof, the Judge may order the husband to pay her such alimony as shall appear to him just and proper, etc. The act applies by its terms only to an action for divorce brought by the wife, and it is (574) contended by the plaintiff who is the husband, that the Judge has no right to allow the wife alimony when he is the plaintiff, and she the defendant. If the act is limited to its literal construction, of course that is so, for although the wife has applied for a divorce and has set forth facts, etc., yet it is in her answer and not in her complaint as the statute literally taken requires.
In interpreting an act, it is the duty of a Court to ascertain its intent and meaning and for that purpose, says BLACKSTONE, we must consider the old law, the evil which the act was intended to remedy, and the remedy. And we may well give a liberal interpretation to the remedy when otherwise it would be incomplete and only half accomplish its purpose. It was supposed under the decision in this Court inWilson v. Wilson,
The argument of the plaintiff against the right of a wife to alimony when she is a defendant, is this: Before the act of 1852 the wife, even when plaintiff, had no right to alimony pendente lite (and for this he cites Wilson v. Wilson), and as the act only gave it to her when plaintiff, it impliedly prohibited it to her when a defendant. The conclusion is logical if the premises are correct. It will be seen on examining Wilson v. Wilson, that GASTON, J. admits that by the practice of the English Ecclesiastical Courts, the wife might apply for alimony as soon as the Court was informed of the fact of marriage; but he says that that usage had not been introduced by statute into the Court of this State, and consequently did not exist here; and he puts the refusal of the Court to grant alimony on the general absence of that power, as one of the grounds of the decision of the Court. But he also (576) puts it on another ground which was incontestable, viz., that the plaintiff's allegations of cruelty were too indefinite to be acted on. To that it is not certain that the general want of power was the controlling reason on which the decision was made; it might have been merely the opinion of the eminent Judge who delivered the opinion of the Court. However this may be, the doctrine that the practice and usages of the English Ecclesiastical Courts do not prevail here in cases not provided for by statute, has been since distinctly contradicted, and the ecclesiastical law of England declared to be a part of the common law, which became in force as soon as jurisdiction in divorce was given to our Courts. In 1843, when Crump v. Morgan,
We do not think that we have any jurisdiction to change the amount of alimony allowed by the Judge, which depends on his discretion, and may be altered or modified by him at any time. But we think we may not improperly call the attention of His Honor to sec. 37, act of 1871-'72 (Bat. Rev., ch. 37, sec. 9) and to 2 Bish. Mar. and Div., sec. 460, as bearing on that subject. Judgment below affirmed. Let this opinion be certified to the end that the case may be proceeded in according to law.
Affirmed.
Cited: Reeves v. Reeves,