Joyner v. Joyner

• Decision Date: 30 June 1862
• Citation: 82 Am.Dec. 421,6 Jones 322,59 N.C. 322
• Court: North Carolina Supreme Court
• Parties: JOYNER v. JOYNER

6 Jones Eq. 322

59 N.C. 322

82 Am.Dec. 421

JOYNER

v.JOYNER

Supreme Court of North Carolina.

June Term, 1862.

There are circumstances, under which the striking of his wife with a horse-whip, or switch, by a husband, and inflicting bruises, would not be the ground of a divorce. Where, therefore, such voilence was made the ground of an application for a divorce, it was held to be necessary, that the bill, or petition, should set forth particularly and specially, what she did and said immediately prior to, and during such use of force.

THIS is an appeal from an interlocutory order of Judge OSBORNE, in the Court of Equity of Northamton county, allowing to the pititioner for a divorce, alimony pendente lite.

The petioner states that she was the widow of one David Futrell, and intermarried with the defendant in November, 1860; that she had a reasonable prospect of happiness from the marriage, herself well bred, and of a respectable family, and her husband not less than a fair match for her; that in this she was greatly disappointed; that her husband manifested great coarseness and brutality, “and even inflicted the most severe corporal punishment. This he did on two different occasions, once with a horse-whip, and once with a switch, leaving several bruises on her person.”“He used towards her, abusive and insulting language, accused her of carrying away articles of property from his premises, to her daughter by a former husband; refused to let said child live with her; has frequently, at night, after she had retired, driven her from bed, saying that it was not hers, and that she should not sleep upon it.--He has also forbade her sitting down to his table in company with his family,” and that “by such like acts of violence and indignity has forced her to leave his house, and that she is now residing with her friends and relatives, having no means of support for herself, and an infant son, born within the four past weeks.” These facts, the ground of this her complaint, have existed at least six months prior to the filing of this bill. “Your petitioner, during the whole time of her intermarriage with the defendant, saith that she has been a dutiful, faithful and affectionate wife, and desired so to continue during life, but the outrages upon her person and rights, have made it her desire, as well as duty, to seek a perpetual separation from his bed, his board, and from the bonds of matrimony.” The bill prays accordingly and for alimony.

At the term to which the process was returnable, the plaintiff's counsel moved for alimony pendente lite, when the following order was made: “This cause coming on to be heard, it is ordered upon hearing of the cause, and upon affidavits, as to the estate of the defendant, that the clerk and master give notice to the defendant, to pay into the office of the clerk and master for Northamton county, the sum of $350, as alimony, for the subsistance for the said plaintiff and her child, until the next term of the court, and that the payment of the above sum be made on, or before, the 15th day of December 1861.”

From this order, the defendant prayed an appeal to the Supreme Court, which was granted.

Barnes for the plaintiff .

W. N. H. Smith for the defendant .

PEARSON, C. J.

The Legislature has deemed it expedient to enlarge the grounds, upon which divorces may be obtained; but as a check or restraint on applications for divorces, and to guard against abuses, it is provided, that the cause or ground on which the divorce is asked for, shall be set forth in the petition ““particularly and specially.” It is settled by the decisions of this Court, that this provision of the statute must be strictly observed, and the cause, or causes for which the divorce is prayed, must be set forth so, “particularly and specially,” as to enable the court to see on the face of the petition, that if the facts alleged are true, the divorce ought to be granted: Everton v. Everton, 5 Jones' 202. The correctness of this construction is demonstrated by the fact, that, upon appeals from an order, allowing alimony pending the suit, like the present, this Court is confined expressly to an examination of the cause or causes of divorce, as set out on the face of the petition, and can look at nothing else, in making up the decision: Rev. Code, chap. 40, sec. 15.

By the rules of pleading in actions at the common law, every allegation of fact, must be accompanied by an allegation of “time and place.” This rule was adopted in order to insure proper certainty in pleading, but a variance in the allegata and probata, that is a failure to prove the precise time and place, as alleged in the pleading, was held not to be fatal, unless time or place entered into the essence and made a material part of the fact relied on, in the pleading.

There is nothing on the face of this...