Nichols v. Nichols

• Decision Date: 09 April 1901
• Citation: 38 S.E. 296,128 N.C. 108
• Parties: NICHOLS v. NICHOLS.
• Court: North Carolina Supreme Court

38 S.E. 296

128 N.C. 108

NICHOLS v. NICHOLS.

Supreme Court of North Carolina

April 9, 1901

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 facts, the ground of his or her complaint had existed to her knowledge at least six months prior to the filing of the petition." That section also declared that no person should be entitled to sue under the act unless he or she should have resided within the state three years immediately preceding the exhibition of his or her petition. Nevertheless, we are of the opinion that,...