Clark v. Clark

• Citation: 133 N.C. 28,45 S.E. 342
• Court: United States State Supreme Court of North Carolina
• Decision Date: 22 September 1903
• Parties: CLARK. v. CLARK.

45 S.E. 342

133 N.C. 28

CLARK.

v.CLARK.

Supreme Court of North Carolina.

Sept. 22, 1903.

DIVORCE—ALIMONY—PENDENTE LITE—AFFIDAVITS—FILING—COMPLAINT —JURISDICTION.

1. Code 1883, § 1287, requires the plaintiff in a suit for divorce or alimony to file with her complaint an affidavit that the facts are true to the best of her knowledge, and that the facts set forth as grounds for divorce have existed, to plaintiff's knowledge, at least six months prior to the filing of the complaint, and that she has been a resident of the state for two years next preceding the filing thereof, and that the husband is removing, or is about to remove, his property and effects from the state, whereby she may be disappointed in her alimony. Held, that the filing of such an affidavit and complaint was essential to jurisdiction of the subject-matter of the action, and where plaintiff filed an unsworn affidavit under such section, showing the commencement of an action for divorce within six months after ascertaining the facts, but failed to file a complaint, the court had no jurisdiction to grant an order for alimony pendente lite.

2. Where, in an action for divorce, plaintiff obtained an order for alimony pendente lite, without complying with Code 1883, § 1287, regulating the procedure for that purpose, such order could not be sustained as an order granting an allowance from the estate of her husband, authorized by Code 1883, § 1292, providing that if a husband shall separate himself from his wife, and fail to provide her with necessary subsistence, etc., the court shall cause the husband to secure a part of his estate for the benefit of his wife.

Appeal from Superior Court, Bertie County; Fred Moore, Judge.

Action by Cora Clark against Ruffin Clark. From a judgment awarding plaintiff alimony pendente lite, defendant appeals. Action dismissed.

Francis D. Winston, for appellant.

WALKER, J. This is an application for alimony pendente lite. On the 4th day of February, 1903, the plaintiff filed an affidavit in the office of the clerk of the superior court, under section 1287 of the Code of 1883, in which she stated that she intended to bring an action for divorce against her husband, the defendant, and that she had not had knowledge of the facts upon which her action would be based for six months. It is provided by section 1287 of the Code of 1883 that when such an affidavit is filed, the wife may reside separate and apart from her husband, and secure for her own use the wages of her labor during the time of the separation. On the same day, February 4, 1903, she commenced an action against the defendant for divorce from bed and board by causing a summons to be issued, which was served upon him February 5, 1903. On February 14, 1903, plaintiff filed an affidavit, and, on the 19th day of the same month, a petition, in which she seeks alimony, alleging that she had been neglected and ill-treated by her husband. In the view we take of the case, it is not necessary to set forth her allegations more particularly. The affidavit and petition were not verified, as required by section 1287 of the Code. The court, at the hearing, granted the prayer of the affidavit and petition for alimony, and ordered that the defendant should pay to plaintiff five dollars on the first day of each month during the pendency of the action. The defendant was not present when this order was made,...