McFetters v. McFetters

• Decision Date: 31 May 1941
• Docket Number: 675.
• Citation: 14 S.E.2d 833,219 N.C. 731
• Parties: McFETTERS v. McFETTERS.
• Court: North Carolina Supreme Court

14 S.E.2d 833

219 N.C. 731

McFETTERS v. McFETTERS.

No. 675.

Supreme Court of North Carolina

May 31, 1941

Civil action for allotment of subsistence without divorce and for counsel fees under provision of C.S. § 1667.

The record on appeal shows: In this action, instituted in Superior Court of Guilford County, North Carolina, March 25 1941, plaintiff for causes alleged in her complaint, duly verified by her and asked to be taken as an affidavit in support of motion therefor, prayed not only for an order alloting to her reasonable subsistence, but for order for temporary allowance of $750 per month for maintenance and support and $2,500 counsel fees pendente lite, all as provided in C.S. § 1667.

Summons and complaint, as well as notice that on April 1, 1941, at 9:30 A.M., plaintiff would present to the court motion for temporary subsistence and counsel fees, were duly served on defendant on March 25, 1941. At 9:20 A.M., on April 1, 1941 there was filed in office of Clerk of Superior Court "certificate and affidavit" dated March 31, 1941 signed and verified by plaintiff, reading as follows "The undersigned, being the plaintiff in the above entitled action, having heretofore advised her counsel of the matters herein stated, does not wish to prosecute the application for subsistence as prayed for in the complaint and hereby certifies that she has resumed marital relations with her husband, the defendant, withdraws and renounces the complaint; and she, therefore, takes a voluntary nonsuit in the said action and prays the court to dismiss the same as of judgment of nonsuit."

On April 3, 1941, subpoena for plaintiff to appear before the judge of Superior Court at Courthouse in Greensboro on Friday, April 4, 1941, at 9:30 A.M., to give evidence in this action was issued and served on her. On April 4, 1941, Sapp, Sapp & Atkinson, attorneys, by petition filed, moved in the cause for an order for an allowance of counsel fees for services rendered to plaintiff in the action, as provided by C.S. § 1667, and for an order requiring defendant to pay the same.

Upon hearing of that petition on April 8, 1941, the court finds as facts, numbered by us, as follows: (1) That this action was brought under C.S. § 1667; (2) that plaintiff and defendant are husband and wife; (3) that plaintiff employed the petitioning attorneys to represent her in said action; (4) that at the time she sought the services of the petitioning attorneys she explained to them that she was without resources and had no money with which to pay a fee; (5) that said attorneys brought said action on behalf of plaintiff after investigating the facts and after they realized that plaintiff should receive legal assistance under the circumstances narrated by her, and relied upon the provisions of C.S. § 1667, that the court would make an order as therein provided for reasonable counsel fees; (6) that said action was duly brought, the complaint was duly verified, and the summons was duly and regularly served upon the defendant; (7) that the complaint, which was duly verified by plaintiff states a valid, sufficient, and meritorious cause of action as provided by the terms of C.S. § 1667; (8) that after said action had been begun, the summons and complaint served upon the defendant, and while the petitioning attorneys were at work preparing plaintiff's case for trial, the plaintiff called the petitioning attorneys, over the telephone, and stated that the defendant had asked that she give him one more trial, and that she desired to withdraw the suit; (9) that the petitioner then filed the petition, as aforesaid, as will appear from the records; (10) that Harry R. Stanley, attorney for defendant, drafted the certificate and affidavit appearing of record and now on file and signed by the plaintiff, in which she withdraws her action against the defendant and judgment of nonsuit is this day entered by the court; (11) that said attorney for defendant did not attend the signing of said certificate and affidavit, and thereafter the same was filed in this cause as an affidavit in support of defendant's resistance to judgment allowing counsel fees against him, as sworn to by Harry R. Stanley, attorney, in an affidavit dated April 7, 1941; (12) that the petitioning attorneys rendered valuable assistance and services to plaintiff before the reconciliation of plaintiff and defendant, and the allegations in respect thereto in the petition filed by the petitioning attorneys are found to be facts; (13) that after the hearing on the attorney's petition aforesaid and after the court had announced its holdings, Harry R. Stanley, attorney, presented to the court the judgment of nonsuit; and (14) that the services rendered by the petitioning attorneys in this matter are reasonably worth the sum of $250; "and the same is allowed, and the court orders and adjudges that this sum be paid to the petitioner, Sapp, Sapp & Atkinson, by the defendant, George Albert McFetters, as provided by C.S. § 1667; that this order shall have the effect of a judgment and shall be a lien and a charge against the real and personal property of the said George Albert McFetters, defendant in this action, and unless paid within 10 days from the date hereof execution shall issue by the Clerk of the Court to the Sheriff of Guilford County for the collection and payment of same, and this cause is retained for...