Hodges v. Hodges, No. 234.
| Docket Nº | No. 234. |
| Citation | 39 S.E.2d 596 |
| Case Date | October 09, 1946 |
| Court | United States State Supreme Court of North Carolina |
39 S.E.2d 596
HODGES .
v.
HODGES.
No. 234.
Supreme Court of North Carolina.
Oct. 9, 1946.
Appeal from Superior Court, Harnett County; Clawson L. Williams, Judge.
[39 S.E.2d 597]Action by Mrs. Hester Hodges against Zola Hodges for alimony without divorce. Alimony pendente lite and counsel fees were awarded, and defendant appeals assigning error. On defendant's motion to dismiss the action.
Action dismissed.
Civil action instituted by the plaintiff for alimony without divorce, as provided in G.S. § 50-16.
Pursuant to notice, the plaintiff made application to his Honor for a subsistence allowance and counsel fees pending the trial and final determination of this cause. At the hearing on the application, the defendant moved to dismiss on the ground that the action, according to the pleadings of the plaintiff, was brought prematurely. Motion denied.
Alimony pendente lite and counsel fees were awarded. Defendant appealed to the Supreme Court, assigning error.
Wellons & Canaday, of Smithfield, for plaintiff.
Neill McK. Salmon, of Lillington, and J. R. Young, of Dunn, for defendant.
DENNY, Justice.
The defendant now moves in this Court, to dismiss the action on the ground that the Court is without jurisdiction, for the reason that the complaint filed in this cause is not verified as required by G.S. § 50-16.
The appellee admits the complaint is not verified, but insists that a verification of the pleadings in an action for alimony without divorce is not required by the statute.
In G.S. § 50-16, it is provided "In actions brought under this section, the wife shall not be required to file the affidavit provided in § 50-8, but shall verify her complaint as prescribed in the case of ordinary civil actions." We hold that this provision is mandatory as to the verification but relieves the wife of the necessity of filing the affidavit required by G.S. § 50-8, and substitutes therefor the form prescribed for the verification of pleadings in ordinary civil actions. Moreover, this Court held in Cowles v. Hardin, 79 N.C. 577, where a statute directs that the complaint "shall be sworn to as in other actions", the want of a proper verification is a fatal defect, for which judgment will be arrested. And Stacy, C. J., said, in speaking for the Court in Padgett v. Long, 225 N.C. 392, 35 S.E.2d 234, 235: "It will be noted that the right which the plaintiff seeks to enforce is statutory. No such right existed at common law. It is essential therefore that the cause of action...
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Carpenter v. Carpenter, No. 668
...38 S.E.296; Hopkins v. Hopkins, 132 N.C.22, 43 S.E.508; Clark v. Clark, 133 N.C.28, 30, 45 S.E. 342; cf. Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596. But, 'When the proper affidavit is made, the court acquires jurisdiction of the cause. ' Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97, 98. Th......
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In re T.R.P., No. 629A05.
...we have held that the trial court did not have jurisdiction in the absence of a verified complaint, Hodges v. Hodges, 226 N.C. 570, 571, 39 S.E.2d 596, 597 (1946). Moreover, while this Court has not previously addressed the jurisdictional effect of verification of a juvenile petition, for m......
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Eudy v. Eudy, No. 124
...Court, either Ex mero motu or upon motion duly made. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617; Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. On the other hand, when the proper affidavit was filed, the Court acquired jurisdiction in ......
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Schlagel v. Schlagel, No. 669
...Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7. This applies to an action for alimony without divorce * * *.' Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596, 597. G.S. § 50-10 provides: 'The material facts in every complaint asking for divorce shall be deemed to be denied by the defendant, whether......
-
Carpenter v. Carpenter, No. 668
...38 S.E.296; Hopkins v. Hopkins, 132 N.C.22, 43 S.E.508; Clark v. Clark, 133 N.C.28, 30, 45 S.E. 342; cf. Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596. But, 'When the proper affidavit is made, the court acquires jurisdiction of the cause. ' Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97, 98. Th......
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In re T.R.P., No. 629A05.
...we have held that the trial court did not have jurisdiction in the absence of a verified complaint, Hodges v. Hodges, 226 N.C. 570, 571, 39 S.E.2d 596, 597 (1946). Moreover, while this Court has not previously addressed the jurisdictional effect of verification of a juvenile petition, for m......
-
Eudy v. Eudy, No. 124
...Court, either Ex mero motu or upon motion duly made. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617; Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. On the other hand, when the proper affidavit was filed, the Court acquired jurisdiction in ......
-
Schlagel v. Schlagel, No. 669
...Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7. This applies to an action for alimony without divorce * * *.' Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596, 597. G.S. § 50-10 provides: 'The material facts in every complaint asking for divorce shall be deemed to be denied by the defendant, whether......