Ellis v. Ellis, (No. 373.)

Docket Nº(No. 373.)
Citation130 S.E. 7
Case DateNovember 04, 1925
CourtUnited States State Supreme Court of North Carolina

130 S.E. 7
(190 N. c. 418)

ELLIS.
v.
ELLIS.

(No. 373.)

Supreme Court of North Carolina.

Nov. 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.

W. B. Ellis, in pro. per.

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

[130 S.E. 8]

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. § 1059. 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 resi dence 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, SO S. E. 178, 49 L. R. A. (N. S.) 1034, and Sanderson v. Sanderson, 178...

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47 practice notes
  • Carpenter v. Carpenter, 668
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 26, 1956
    ...when this appears on the face of the record. Such decree may be attacked directly by motion in the cause, Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7, or collaterally, Saunderson v. Saunderson, 195 N.C. 169, 141 S.E. Here the jurisdiction of the Superior Court of Durham County of the person of......
  • Cameron v. Cameron, 593
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1952
    ...cross demand. Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444; Shore v. Shore, 220 N.C. 802, 18 S.E.2d 353; Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7. Such counterclaim or cross demand may even be based, in whole or in part, upon facts occurring after the institution of the action. Pettigr......
  • Byers v. Byers, 524.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 28, 1943
    ...immediate disposition, may have upon the future course of the litigation cannot now be determined. See Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7; 30 Am.Jur. 927; Case Mfg. Co. v. Moore, 144 N.C. 527, 57 S.E. 213, 10 L.R.A..N.S, 734, 119 Am.St.Rep. 983. At present we are concerned only with t......
  • Foster v. Allison Corp., (No. 220.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 17, 1926
    ...S. E. 882, 179 N. C. 485; Gough v. Bell, 104 S. E. 535, 180 N. C. 268; Duffer v. Brunson, 125 S. E. 619, 188 N. C. 789; Ellis v. Ellis, 130 S. E. 7, 190 N. C. 418, 422. The authorities cited by Mr. Freeman when the relief was granted, all show that the party knew of the suit. Freeman on Jud......
  • Request a trial to view additional results
34 cases
  • Carpenter v. Carpenter, No. 668
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 26, 1956
    ...when this appears on the face of the record. Such decree may be attacked directly by motion in the cause, Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7, or collaterally, Saunderson v. Saunderson, 195 N.C. 169, 141 S.E. Here the jurisdiction of the Superior Court of Durham County of the person of......
  • Cameron v. Cameron, No. 593
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1952
    ...cross demand. Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444; Shore v. Shore, 220 N.C. 802, 18 S.E.2d 353; Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7. Such counterclaim or cross demand may even be based, in whole or in part, upon facts occurring after the institution of the action. Pettigr......
  • Byers v. Byers, No. 524.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 28, 1943
    ...immediate disposition, may have upon the future course of the litigation cannot now be determined. See Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7; 30 Am.Jur. 927; Case Mfg. Co. v. Moore, 144 N.C. 527, 57 S.E. 213, 10 L.R.A..N.S, 734, 119 Am.St.Rep. 983. At present we are concerned only with t......
  • Foster v. Allison Corp., (No. 220.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 17, 1926
    ...S. E. 882, 179 N. C. 485; Gough v. Bell, 104 S. E. 535, 180 N. C. 268; Duffer v. Brunson, 125 S. E. 619, 188 N. C. 789; Ellis v. Ellis, 130 S. E. 7, 190 N. C. 418, 422. The authorities cited by Mr. Freeman when the relief was granted, all show that the party knew of the suit. Freeman on Jud......
  • Request a trial to view additional results

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