Man v. Holloman

• Decision Date: 09 October 1900
• Citation: 37 S.E. 68,127 N.C. 15
• Parties: HOLLO MAN. v. HOLLOMAN.
• Court: North Carolina Supreme Court

127 N.C. 15

37 S.E. 68

HOLLO MAN.

v.HOLLOMAN.

Supreme Court of North Carolina.

Oct. 9, 1900.

DIVORCE—AMENDED COMPLAINT—AFFIDAVIT OF GOOD FAITH—NECESSITY. A suit for divorce a mensa et thoro, under Code, § 12S6, making abandonment a cause for such divorce, was brought after the passage of Laws 1895, c. 277, requiring two years' abandonment for divorce a vinculo, but before the expiration of the two years. After the enactment of Laws 1899, c. 211, authorizing a divorce a vinculo for one year's abandonment, plaintiff filed an amended complaint, alleging abandonment for more than two years, and prayed for a divorce a vinculo, but did not file with it the-affidavit of good faith required by Code, § 1287. Held, that the failure to file such affidavit rendered the amended complaint inoperative, and hence insufficient to support a decree for divorce a vinculo, though such affidavit was filed with the original complaint.

Appeal from superior court, Hertford county; Coble, Judge.

Action by Kindred Holloman against Sarah A. D. Holloman. From a decree for plaintiff, defendant appeals. Reversed.

Geo. Cowper, for appellant.

Francis D. Winston, for appellee.

MONTGOMERY, J. This action was commenced under section 1286 of the Code for a divorce a mensa et thoro. It was begun after the passage of the act (chapter 277, Laws 1895) which provided for divorces a vinculo in cases of abandonment for two years, but before the expiration of two years from the time of the abandonment of the plaintiff by the defendant, his wife. After the enactment of chapter 211 of the Laws of 1899, which amended the act of 1895 by substituting one year's abandonment for the two prescribed by the act of 1895 as the cause of divorce a vinculo, the plaintiff amended his complaint so as to allege abandonment for even more than two years, and prayed for a divorce a vinculo. The original complaint was filed at the spring or fall term of the superior court (the record does not show clearly when), and was accompanied by the affidavit required by section 1287 of the Code. The amendment set forth the same cause for divorce as that set out in the original complaint, viz. abandonment by the wife, but there was a prayer for judgment for divorce from the bonds of matrimony. It was filed at the fall term, 1899, of the superior court, and was not accompanied by the affidavit required by the Code. No exception in the record appears to have been made to the order allowing the amended complaint, or to the matter or...