Ellis v. Ellis

• Decision Date: 04 November 1925
• Docket Number: 373.
• Parties: ELLIS v. ELLIS.
• Court: North Carolina Supreme Court

130 S.E. 7

190 N.C. 418

ELLIS v. ELLIS.

No. 373.

Supreme Court of North Carolina

November 4, 1925

Appeal from Superior Court, Forsyth County; Schenck, Judge.

Action by W. B. Ellis against Clara N. Ellis. Judgment for defendant on cross-petition. Plaintiff's motion to set aside and vacate judgment was denied, and he appeals. Error. Case certified for further proceedings.

Motion by plaintiff at the May term, 1925, Forsyth superior court to set aside or vacate the judgment rendered in this cause at the March term, 1925, Forsyth superior court, "for reasons set out in affidavits," which seem to be : (1) That it is void; (2) that it was entered contrary to the usual course and practice of the court, therefore irregular and (3) that it was taken against the plaintiff through his mistake, inadvertence, surprise, or excusable neglect. C. S § 600. Motion denied, and plaintiff appeals.

Binding force and effect of judgment not impaired because erroneously allowed.

W. B Ellis, in pro. per.

Swink, Clement & Hutchins and Manly, Hendren & Womble, all of Winston-Salem, for appellee.

STACY C.J.

This suit was instituted by plaintiff, as the alleged injured party, for an absolute divorce, upon the ground that there has been a separation between himself and the defendant, his wife, and that they have lived separate and apart for more than 5 successive years prior to the institution of the action. C. S. § 1659. There is no specific allegation in the complaint that the plaintiff has resided in this state for the requisite 5-year period of separation.

In her answer, the defendant sets up a cross-action, which is permissible under our practice (Cook v. Cook, 159 N.C. 50, 74 S.E. 639, 40 L. R. A. [ N. S.] 83, Ann. Cas. 1914A, 1137), alleges that she is the injured party, and applies for an absolute divorce from the plaintiff upon the ground that there has been a separation between herself and the plaintiff, her husband; that they have lived separate and apart for more than 5 successive years prior to the institution of the action, and that she has resided in this state, not only for the requisite 5-year period of separation, but for a much longer time, to wit, all her life.

Upon the issues raised by the defendant's cross-action, no evidence having been offered by the plaintiff to sustain the allegations of his complaint, the jury impaneled at the March term, 1925, Forsyth superior court, to try the cause, returned the following verdict:

"(1) Were the plaintiff and defendant married as alleged in the pleadings? Answer: Yes.

(2) Has the defendant been a resident of the state of North Carolina for more than 2 years prior to the bringing of this suit? Answer: Yes.

(3) Has there been a separation of the plaintiff and defendant for 5 years prior to the bringing of this action, as alleged in the answer? Answer: Yes."

There was a judgment on this verdict in favor of the defendant, plaintiff in the cross-action, dissolving the bonds of matrimony existing between the parties, under authority of C. S. 1659, subsec. 4, which, as amended by chapter 63, Public Laws 1921, is as follows:

"Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, made as by law provided, in the following cases: * * *

4. If there has been a separation of husband and wife, and they have lived separate and apart for five successive years, and the plaintiff in the suit for divorce has resided in this state for that period."

It will be observed that the separation of husband and wife, and their living separate and apart for 5 successive years, are not sufficient grounds for divorce under the statute, but, in addition thereto, the plaintiff in the suit for divorce must have resided in this state for that period. Such residence is an integral part of the cause for divorce as given by this subsection. The reason for such requirement is obvious. At any rate, ita lex scripta est. By the express term of the statute, a marriage may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, made as by law provided: (1) If there has been a separation of husband and wife; (2) and they have lived separate and apart for 5 successive years; (3) and that plaintiff in the suit for divorce has resided in this state for that period.

For a history of the statutory changes and amendments relating to this particular cause for divorce, see opinions in Cooke v. Cooke, 164 N.C. 272, 80 S.E. 178, 49 L. R. A. (N. S.) 1034, and Sanderson v. Sanderson, 178 N.C. 339, 100 S.E. 590.

Here the defendant, who is the plaintiff, pro hac vice, in her suit for divorce, as set up in her cross-action, alleges that there has been a separation between herself and the plaintiff, her husband, that they have lived separate and apart for more than 5 successive years prior to the institution of the action, and that she has resided in this state, not only for the requisite 5-year period of separation, but for a much longer time, to wit, all her life.

The defendant sets up in her cross-action a valid cause for divorce under the statute, but the issues submitted to the jury are not sufficient to support the judgment for divorce. It is not established by the verdict that Mrs. Ellis has resided in this state for the requisite 5-year period of separation. The only issue as to her residence was the second, and this simply finds that she has been a resident of the state of North Carolina "for more than 2 years prior to the bringing of this suit." That the complainant has been a resident of the state for 2 years next preceding the filing of the complaint is the necessary allegation required by C. S. § 1661, to be incorporated in the affidavit and to accompany the complaint so as to give the court jurisdiction over a divorce proceeding. Johnson v. Johnson, 142 N.C. 462, 55 S.E. 341; Hopkins v. Hopkins, 132 N.C. 22, 43 S.E. 508; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. And, while this is the length of residence in the state necessary to give the court jurisdiction over the subject of divorce, in an action like the present, where the cause for divorce is bottomed on subsection 4 of C. S. § 1659, it is essential that all the material facts should be alleged in the complaint and "found by a jury" before the court would be warranted in entering a decree dissolving the bonds of matrimony existing between the parties. Zimmerman v. Zimmerman, 113 N.C. 435, 18 S.E. 334.

True no answer was interposed by the plaintiff to the complaint filed by his wife in her cross-action, but the material facts in every complaint asking for a divorce are deemed to be denied under the statute, and no judgment is allowed to be given in favor of the plaintiff in any such complaint until all the material facts have been found by a jury. The pertinent provisions of C. S. § 1662, are as follows:

"The material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied

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