Nichols v. Nichols
| Citation | 38 S.E. 296, 128 N.C. 108 |
| Case Date | April 09, 1901 |
| Court | United States State Supreme Court of North Carolina |
38 S.E. 296
128 N.C. 108
NICHOLS .
v.
NICHOLS.
Supreme Court of North Carolina.
April 9, 1901.
DIVORCE—KNOWLEDGE OP GROUNDS OP COMPLAINT—APPEAL—JURISDICTION.
1. Provisions of Code, § 1287, that the affidavit accompanying the complaint in divorce shall state that the grounds of plaintiff's complaint had existed to his or her knowledge at feast six months before filing of the complaint, are mandatory.
2. An objection to the jurisdiction of the court for failure of the affidavit to state such fact can be first made on appeal.
Appeal from superior court, Forsyth county; Timberlake, Judge.
Action by Dicey Nichols against William Nichols. From a judgment for plaintiff, defendant appeals. Action dismissed.
Watson, Buxton & Watson, for appellant.
Jones & Patterson, for appellee.
MONTGOMERY, J. The appellant in this court moved to dismiss the action on the ground that the superior court did not have jurisdiction upon the complaint to try the case. The action was for divorce a vinculo, and the affidavit accompanying the complaint did not contain one of the averments prescribed in Code, § 1287. There was omitted from the affidavit the statement that the facts set forth in the complaint as grounds for divorce had existed to plaintiff's knowledge at least six months prior to the filing of the complaint The question, then, is presented: Do the matters which are required to be set forth in petitions for divorce (Code, § 1287) affect the jurisdiction of the court, or are they matters merely directory, and, if not complied with, demurrable only, and cured by verdict and judgment in the cause if not demurred to? There is no fault found with the complaint In the case. In Dickinson v. Dickinson, 7 N. C. 327, this court said: "It should, however, be distinctly stated in the affidavit that the petitioner knew of the facts charged six months before the filing of the petition; and this that the application may appear to the court not dictated by passion or resentment but an affair of deliberation." That point was decided, as the court said, that it might serve to prevent fruitless litigation, and settle the practice in other cases; the case, however, had been disposed of on another point, upon which the argument In chief had been made. It is true that that decision was rendered upon the statute of 1814, brought forward in Rev. St. c. 39, and that section 6 of that act declared that, "no petition for divorce should be sustained unless the petitioner stated and swore to the...
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Carpenter v. Carpenter, No. 668
...requires in connection with a complaint for divorce is jurisdictional. Holloman v. Holloman, 127 N.C. 15, 37 S.E. 68; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. A complaint in a divorce action accompanied by a false statutory affidavit, knowingly made, is as fatal as a complaint without......
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Green v. James, Case Number: 19706
...132 N.C. 22, 43 S.E. 508; De Armond v. De Armond, 92 Tenn. 40, 20 S.W. 422; Rayl v. Rayl (Tenn. Ch. App.) 64 S.W. 309; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. ¶26 Lizzie Dial had opportunity to object to the verification as made, but instead of objecting thereto, she answered. ¶27 We......
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Eudy v. Eudy, No. 124
...motion duly made. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617; Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. On the other hand, when the proper affidavit was filed, the Court acquired jurisdiction in divorce actions. Kinney v. Kinney, ......
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State v. Johnson
...reply to the remarks of opposing counsel, —you will discard it in making up your verdict." In Landers v. Railroad Co., 46 W. Va. 492, 38 S. E. 296, it is held: "In order to authorize this court to revise errors predicated upon the abuse of counsel of the privilege of argument, it should be ......
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Carpenter v. Carpenter, No. 668
...requires in connection with a complaint for divorce is jurisdictional. Holloman v. Holloman, 127 N.C. 15, 37 S.E. 68; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. A complaint in a divorce action accompanied by a false statutory affidavit, knowingly made, is as fatal as a complaint without......
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Green v. James, Case Number: 19706
...132 N.C. 22, 43 S.E. 508; De Armond v. De Armond, 92 Tenn. 40, 20 S.W. 422; Rayl v. Rayl (Tenn. Ch. App.) 64 S.W. 309; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. ¶26 Lizzie Dial had opportunity to object to the verification as made, but instead of objecting thereto, she answered. ¶27 We......
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Eudy v. Eudy, No. 124
...motion duly made. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617; Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. On the other hand, when the proper affidavit was filed, the Court acquired jurisdiction in divorce actions. Kinney v. Kinney, ......
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Wills v. Wills, 21,992.
...W. 1015, 11 L. R. A. (N. S.) 730, 120 Am. St. Rep. 698, and cases cited: Ayres v. Gartner, 90 Mich. 381, 51 N. W. 461;Nichols v. Nichols, 128 N. C. 108, 38 S. E. 296;Hopkins v. Hopkins, 132 N. C. 23, 24, 43 S. E. 508;Martin v. Martin, 130 N. C. 27, 40 S. E. 822; [96 N.E. 765]Halloman v. Hal......