Barber v. Barber

• Decision Date: 27 September 1939
• Docket Number: 109.
• Citation: 4 S.E.2d 447,216 N.C. 232
• Parties: BARBER v. BARBER.
• Court: North Carolina Supreme Court

4 S.E.2d 447

216 N.C. 232

BARBER v. BARBER.

No. 109.

Supreme Court of North Carolina

September 27, 1939

Petition and motion in the cause by the plaintiff. In 1920 the plaintiff instituted an action against the defendant for subsistence without divorce. After answer was filed the cause was duly heard before a jury and the issues submitted were answered in favor of the plaintiff. There was judgment thereon allowing the plaintiff subsistence under the statute. The judgment allowing subsistence was modified in October, 1929, by a judgment of Johnson, J. This order reduced the amount of the monthly payments of defendant. At the March Term, 1939, Pless, Jr., J., on affidavit of the plaintiff, entered an order directing that notice be served on the defendant, who is now a nonresident of the state, by the Sheriff of Hamilton County, Tennessee, "to appear at Asheville, North Carolina on 17 April, 1939, and then and there show cause, if any he may have, why the relief prayed for by the plaintiff in her petition filed should not be granted." The order further directed that a copy of the verified petition likewise be served on the defendant. At the same time the plaintiff filed a petition setting forth the former judgments and orders and alleging that the defendant was then in arrears in the payment of monthly installments required of him for the subsistence of the plaintiff in the sum of $16,428.50.

In her petition the plaintiff prays that she have and recover of the defendant herein judgment in the amount of the past-due installments with interest, etc.; that the purported divorce decree obtained by the defendant in the State of Georgia be declared null and void; that the defendant, by appropriate order, be commanded to appear and answer the petition and show cause, if any he may have, why the relief prayed for should not be granted; and for counsel fees and costs.

The notice directed by the judge, together with a copy of the petition, was served on the defendant in the State of Tennessee, March 29, 1939, by the Sheriff of Hamilton County Tennessee.

The defendant, through his counsel, on April 14, 1939, entered a special appearance in the cause for the sole purpose of moving to dismiss said petition for want of jurisdiction. The motion set forth the several grounds relied upon by the respondent. The cause came on for hearing on the special appearance and motion to dismiss entered by the defendant before Pless, Jr., J. at the June Term, 1939, Buncombe County Superior Court. The judge below, having taken the cause under consideration by consent, entered a judgment nunc pro tunc August 7, 1939, adjudging "that the special appearance and motion of the defendant B. George Barber be, and the same hereby is overruled and denied and the defendant B. George Barber is allowed thirty days from this date within which to file demurrer, answer or other pleading to said petition."...