Ladd v. Ladd

• Decision Date: 09 November 1897
• Citation: 28 S.E. 190,121 N.C. 118
• Parties: LADD v. LADD.
• Court: North Carolina Supreme Court

28 S.E. 190

121 N.C. 118

LADD v. LADD.

Supreme Court of North Carolina

November 9, 1897

Appeal from superior court, Durham county; Allen, Judge.

Action by W. N. Ladd against Mary J. Ladd for divorce. From a judgment for defendant, plaintiff appeals. Reversed.

A petition for divorce is insufficient where it follows the words of Laws 1895, c. 277, merely alleging the abandonment by the wife, and her living apart from her husband, and her still refusing to live with him, as the facts should be set forth specifically and definitely.

Boone & Bryant, for appellant.

Winston & Fuller, for appellee.

CLARK J.

There was sufficient evidence to submit the case to the jury ( State v. Green, 117 N.C. 696, 23 S.E. 98; State v. Kiger, 115 N.C. 751, 20 S.E. 456), and for the error in sustaining the demurrer to evidence the plaintiff is entitled to a new trial. The defendant, however, moves in this court to dismiss because the complaint does not state facts sufficient to constitute a cause. This is one of the two exceptions which can be taken in this court, though not made below; the other being that the court had no jurisdiction. Rule 27 (27 S.E. viii); Kidd v Venable, 111 N.C. 535, 16 S.E. 317. It is often difficult to distinguish between a defective statement of a good cause of action which is cured by a failure to demur and the statement of a defective cause of action which is not and to which an exception can be taken for the first time in this court. Knowles v. Railroad Co., 102 N.C. 59, 9 S.E. 7; Mizzell v. Ruffin, 118 N.C. 69, 23 S.E. 927. But under the settled authorities, in an action for divorce it is not sufficient to allege, following the words of chapter 277, Laws 1895, merely the abandonment by the wife and her living separate and apart from her husband, and her still refusing to live with him, but "all the facts relied on as constituting the cause of action are required to be set forth," and "they are to be charged, as far as possible, specifically and definitely." McQueen v. McQueen, 82 N.C. 472, citing Whittington v Whittington, 19 N.C. 64; Wood v. Wood, 27 N.C 674; Foy v. Foy, 35 N.C. 90. "The complaint should contain a fair representation of any transaction relied on as the ground of the decree, since its defects are not aided by the verdict." White v. White, 84 N.C. 340, citing McQueen's Case, supra; and both these cases have been cited and approved since. Jackson v. Jackson, 105 N.C. 433, 11 S.E. 173; O'Connor v. O'Connor, 109 N.C. 139, 13 S.E. 887. Among many prior cases of the same purport are Harrison v. Harrison, 29 N.C. 484; Everton v. Everton, 50 N.C. 202; Erwin v. Erwin, 57 N.C. 82; Joyner v. Joyner, 59 N.C. 322. If there was no jurisdiction in the court in which an action originated, it will be dismissed in this court on motion ore tenus, or even ex mero motu by the court itself. But when the defect is that the complaint does not state a cause of action, if the defect is such that it cannot possibly be cured by additional...