Pain v. Pain

• Citation: 80 N.C. 322
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1879
• Parties: SARAH PAIN v. DANIEL PAIN.

80 N.C. 322

SARAH PAIN

v.DANIEL PAIN.

Supreme Court of North Carolina.

January Term, 1879.

CIVIL ACTION for Divorce a mensa et thoro heard on a motion for alimony pendente lite, at November Special Term, 1878, of MADISON Superior Court before Avery, J.

At the regular term the plaintiff's counsel made the motion for alimony, and a reference was ordered to ascertain what estate or property was held by defendant, and his annual income, and a report returned. The motion was argued before His Honor at chambers, and it appeared that neither a demurrer nor an answer was filed to the complaint, for which failure the plaintiff insisted that judgment should be entered. After argument upon this question and upon intimation of the court that a demurrer embodying the grounds of objection stated by counsel would be sustained, the defendant submitted the demurrer in writing, but it was held to be insufficient. Leave was then granted to file another setting out specifically the grounds of objection, and also to amend the complaint. On the following day the pleadings were read, and the plaintiff moved for an allowance to enable her to prosecute the action, and the defendant was heard in reply. Thereupon His Honor adjudged “that defendant pay into court within twenty days the sum of one hundred dollars to enable plaintiff to prosecute the action till the next term, and in default thereof the defendant shall show cause on the second of January, 1879, at Waynesville, before Gudger, J., why he shall not be attached for contempt.” Upon hearing this order read, the defendant insisted on reading at length the report of the referee, and on further argument His Honor declined to hear the report read, but permitted some discussion between counsel as to the amount of defendant's property and income. The defendant announced his readiness for trial, but the jury had been previously discharged, and the case was continued and the court adjourned.

In reply to a question of defendant's counsel, His Honor stated that he had not read the referee's report. Defendant excepted on the ground of the refusal to hear the report read, and to allow further argument after the foregoing order was made; and on the further ground that upon the testimony reported by referee the court did not have the power to make said allowance. From the judgment of the court the defendant appealed.

Messrs. Gilliam & Gatling and A. T. & T. F. Davidson, for plaintiff .

Messrs. J. L. Henry and Reade, Busbee & Busbee, for defendant .

SMITH, C. J.

This appeal from the interlocutory order allowing the plaintiff alimony, pendente lite, brings before us for examination two exceptions only:

1. The refusal of the judge to hear further evidence of the amount and value of the defendant's estate and argument from his counsel.

2. The penalty imposed in the decretal order for failure to comply with it.

The case shows that on the motion for the allowance the amended complaint verified by the plaintiff's oath was read, and no other evidence was offered by either party. The subject matter of the complaint and the sufficiency of its averments, upon an issue raised by demurrer, had been fully discussed before the judge at chambers the day previous. The motion was granted and the written order set out in the record was prepared and read in the hearing of both parties. Thereupon the defendant's counsel insisted upon the reading of the...