McQueen v. McQueen

• Decision Date: 31 January 1880
• Citation: 82 N.C. 471
• Court: North Carolina Supreme Court
• Parties: CATHARINE MCQUEEN v. ALEXANDER J. MCQUEEN.

82 N.C. 471

CATHARINE MCQUEEN

v.ALEXANDER J. MCQUEEN.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION for Divorce a mensa et thoro tried at Fall Term, 1879, of RICHMOND Superior Court, before Seymour, J.

Judgment was rendered for the plaintiff upon the verdict, and the defendant appealed.

Messrs. J. D. Shaw, McNeil & McNeil and Battle & Mordecai, for plaintiff .

Mr. B. Fuller, for defendant .

DILLARD, J.

On the appeal to this court error is assigned in the refusal of His Honor to hold the facts found by the jury insufficient in law to authorize the divorce prayed for, in the instructions given and refused, and also, in the admission of evidence.

The petitioner in her complaint, after showing the marriage in the spring of 1873, alleges specific acts of cruelty and indignity, beginning in the summer of 1874, and repeated at intervals through the years of 1875,-'76,-'77 as constituting a case which entitles her to a divorce a mensa et thoro.

Separate issues were framed and submitted to the jury as to the truth of the several facts alleged in the complaint. In the progress of the trial, the defendant requested His Honor to restrict the proofs to the specific facts alleged as the grounds of divorce and embraced within the issue; but His Honor refused so to confine the plaintiff, and said she might go further and by evidence show the result or effect upon her of the conduct of the defendant as alleged in her complaint, and for this purpose and to this extent, leave was given to amend the complaint.

In the course of the evidence the plaintiff testified that in July, 1873, the defendant got mad with her, and she feeling some trouble about the matter went and called him, and he refused to answer. That being afraid to go to sleep, she then asked defendant if he would slip into her room and kill her in case she should fall asleep, and no answer being made, she left the house at ten o'clock at night through fear, and went to the house of her brother, Neill McDonald, and related to him the occurrence substantially as then deposed to. Neill McDonald was then allowed to corroborate the plaintiff by showing that she came to his house and made to him the same statement as that made by her on the trial.

In the case of appeal made out for this court, His Honor states that no amendment was asked for and no issue submitted as to the above transaction in July, 1873, and we think there was error in admitting the testimony of the plaintiff on this point, and the evidence of McDonald in corroboration.

The law will not sanction and authorize by its sentence the separation of husband and wife except for legal cause and on the special terms prescribed in the statute, and settled by the adjudications of this court, as to the pleadings and procedure for that purpose. Hence it is that all the facts, relied on as constituting the cause, are required to be...