Messervy v. Messervy

Decision Date09 May 1908
Citation61 S.E. 442,80 S.C. 277
PartiesMESSERVY v. MESSERVY.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

Action by Pearl C. Messervy, by her guardian ad litem, against John E. Messervy. From an order allowing temporary alimony defendant appeals. Affirmed.

See 79 S.C. 58, 60 S.E. 692.

Legare Holman & Baker, for appellant.

W. Turner Logan, for respondent.

JONES J.

Plaintiff, by her guardian ad litem, commenced an action in the court of common pleas for Charleston county against defendant on January 10, 1907, for permanent alimony and for expenses and charges necessary to obtain the same. The verified complaint alleged her marriage to defendant on the 2d day of September, 1906, followed by cohabitation with him until September 4, 1906, when he deserted her without cause, and has ever since failed and neglected to provide for her, that she has had no means of support, and was compelled to return to her parents who are poor and unable to support her; that defendant is the only child of wealthy parents, and has an income of $20 a week, and is well able to support both himself and plaintiff comfortably. The answer of defendant was a general denial.

Plaintiff on July 15, 1907, moved before Judge Memminger at chambers for an order requiring the defendant to pay her alimony pendente lite and suit money, and for an order of reference. The motion was made after due notice upon the verified complaint and the affidavit of plaintiff. In her affidavit plaintiff declared that the marriage ceremony was performed by the Reverend Father P. D. Duffie on the 2d day of September, 1906, that on the next day she and defendant went to the city of Savannah where they lived together until the 4th day of September following the marriage, when the father of defendant came to Savannah and persuaded defendant to return to Charleston; that she accompanied defendant to Charleston, where he basely and without cause deserted her, and she was compelled to return to the home of her parents, where she has been ever since; that for several years prior to her marriage she was employed as a saleslady in the store of F. M. Kirby in the city of Charleston at a salary of $4.50 per week; that upon her marriage to defendant she relinquished this position; that she is a young girl only 20 years old, and entirely without means to prosecute her suit; that her father is a man of small means and large family, and on this account she cannot remain at his home much longer; that defendant has frequently told her that his income was $25 per week; that she is informed and believes that her husband's mother has a fortune aggregating $60,000 to $65,000, that she is informed and believes that since this action was brought that her husband has been in Washington, D. C. living in the utmost comfort, and that he can afford to pay any reasonable sum for her support during the pendency of this action; that deponent was a loving and dutiful wife to her husband while he remained with her, and had for him the greatest affection and love until by his base and cruel conduct in deserting her he has so wounded her feeling as to utterly estrange himself from her.

Defendant in reply made affidavit denying that he was married to plaintiff or that he had ever deserted her, admitting, however, that he had gone through a form of marriage ceremony with plaintiff, but that he did not understand the nature and consequence of the act; that he never knowingly of his free will married her; that deponent was only 17 years of age at the time of the said ceremony; that he is supported entirely by his parents, has no means or income, is not engaged in any business, and is unable to support himself or the plaintiff or to pay any alimony that may be decreed by the court. J. W. Messervy, father of defendant, made affidavit that the said John E. Messervy is a minor 18 years old, and resides with deponent in the city of Charleston; that his son has no means whatsoever nor any income, is not engaged in any business, and therefore unable to pay any amount of alimony. Judge Memminger referred the case to the master to take the testimony on the question of alimony pendente lite and suit money. He held that the plaintiff, notwithstanding the denial by the defendant of the marriage, had made out a prima facie case, and decreed that defendant pay to plaintiff the sum of $200 as suit money in installments of $25 every 30 days until the sum be paid in full, and $20 per 30 days for alimony pendente lite. From this order defendant appealed.

On January 22, 1908, a motion was made in this court to dismiss the appeal, and also the appeal from an order of Judge Memminger dated January 8, 1908, requiring defendant to show cause why he should not be attached for contempt for failure to comply with his decree as to temporary alimony, thereupon this Court passed the following order (79 S.C. 58, 60 S.E. 692): "A motion is made to dismiss the appeal from two orders of Judge Memminger; the first requiring the defendant to pay temporary alimony for plaintiff's support and fees to her attorneys pending the final judgment, and the other requiring defendant to show cause why he should not be attached for contempt in failing to comply with the first order. (1) The motion is on the sole ground that the orders are not appealable. The order requiring the defendant to show cause is not appealable, and as to that order the appeal is dismissed. (2) The order allowing temporary support or alimony and counsel fees pending the litigation is appealable, and as to that order the motion is refused. (3) In the argument it was insisted the appeal should be dismissed on the further ground that the appeal from the first order was not perfected in due time nor according to the rules of court. No notice was given of this ground, and the court cannot consider it. This order, however, does not preclude the plaintiff from making a motion to dismiss on that ground after due notice. ***" Thereafter, on the 27th of January, 1908, after due notice, plaintiff moved to dismiss the appeal from the order allowing temporary alimony on the ground that the case and exceptions were not served within the time required by law, which motion we now consider.

It appears that the order in question was granted August 3 1907, and notice of intention to appeal was served within 10 days thereafter, but that no case and exceptions were served until January 8, 1908. It further appears, however, that when the case and exceptions were served plaintiff's attorney did not raise the objection that it was not in time, but participated in perfecting the appeal by retaining the case and exceptions and proposing amendment thereto. While the case and...

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