Earp v. Earp

• Decision Date: 31 December 1853
• Citation: 1 Jones 118,54 N.C. 118
• Court: North Carolina Supreme Court
• Parties: ELIZABETH EARP v. WILLIAM EARP.

1 Jones Eq. 118

54 N.C. 118

ELIZABETH EARP

v.WILLIAM EARP.

Supreme Court of North Carolina.

December Term, 1853.

No appeal will lie from an order of the Court of Equity under the act of 1852, allowing alimony, PENDENTE LITE, to the wife, who sues for a divorce and alimony.

APPEAL from an interlocutory order made by his Honor Judge MANLY, in a case for a DIVORCE and ALIMONY, at the Court of Equity, for Johnston County, at Fall Term, 1853.

At the Spring Term, 1853, the bill in this case was filed, and the following term the defendant demurred, and at the same time the plaintiff moved, under the act of 1852, for a reasonable and sufficient alimony during the pendency of the suit, which was allowed her, and the defendant being dissatisfied, prayed an appeal to the Supreme Court, which was allowed. As the facts contained in the proceedings are not at all considered in the opinion of the Court, it is deemed unnecessary to state them.

Q. Busbee, for plaintiff .

Miller, Bryan, and Moore, for defendant .

NASH, C. J.

The bill is filed for a divorce from bed and board, and for alimony. The defendant demurred, and at the same term, the presiding Judge decreed to the plaintiff the amount set forth in the pleadings, and from that interlocutory order, permitted the defendant to appeal to this Court.

The appeal was granted under the 23d section of the 4th ch. of the Rev. Stat., and if that Statute stood alone, the order would have been correct, and we should have been under the necessity of looking into the bill, and of judging for ourselves, whether it presented such a case as entitled the plaintiff to the relief she sought. For, if the bill did not present such a case, upon its face, as to entitle her to the main relief sought, the one, incident to it, could not be granted. But we are not called to this duty. We are of opinion that the appeal was improvidently granted.

The Legislature, at its session in 1852, ch. 53, p. 110, directed, that when a Bill is filed for a divorce and alimony, the Court may, at the Term when the process is returned, grant to the plaintiff a sufficient sum for her support. Before the passage of this act, it had been settled by this Court, (WILSON v. WILSON, 2 Dev. and Bat. 377,) that the Court, under such a bill, could not grant alimony before the final decree, upon the ground that, if upon the hearing it should appear that the complainant was not entitled to any decree for a divorce, the alimony allowed would be so much lost to the defendant, as the plaintiff is not required...