Pate v. Pate, 123.
| Decision Date | 01 October 1931 |
| Docket Number | No. 123.,123. |
| Citation | 160 S.E. 450 |
| Court | North Carolina Supreme Court |
| Parties | PATE v. PATE. |
Appeal from Superior Court, Wayne County; Sinclair, Judge.
Action for divorce by Ruth Pate against Gurney S. Pate. From order respecting custody of minor child, plaintiff appeals.
Affirmed.
This was an action for divorce, begun in the superior court of Wayne county on June 29, 1929.
At August term, 1929, of said court, there was a judgment and decree dissolving, absolutely, the bonds of matrimony theretofore existing between plaintiff and defendant. There was no order in the judgment or prior thereto, with respect to the custody of Dollie Pate, the minor child of plaintiff and defendant. Since said judgment, the said Dollie Pate has been in the exclusive custody of the plaintiff, who has resided with and been supported by her father, E. F. Lancaster.
At June term, 1931, of said court, the motion of the defendant for an order with respect to the future custody of Dollie Pate came on for hearing and was heard by Judge Sinclair, holding said court, on the last day of the term. After hearing numerous affidavits filed by plaintiff and defendant, and the arguments of their counsel, Judge Sinclair indicated his wish to have an opportunity to read and consider the affidavits and arguments of counsel. At his suggestion, it was agreed by the parties that he should take the affidavits, and make his order on the motion of the defendant out of the term and out of the county.
Thereafter, while holding the June term, 1931, of the superior court of Johnston county, Judge Sinclair made and signed an order with respect to the custody of Dollie Pate. This order was signed at Smithfield, N. C, on June 26, 1931, and has been; duly filed in the superior court of Wayne county.
Plaintiff in apt time moved that the order signed by Judge Sinclair be set aside and vacated on the ground that the order was void. The motion was denied and plaintiff excepted. Plaintiff thereupon appealed from the order to the Supreme Court.
J. Faison Thomson, of Goldsboro, for appellant.
Paul B. Edmundson and Kenneth C. Royall, both of Goldsboro, for appellee.
The contention of plaintiff on her appeal to this court that the order in this action signed by Judge Sinclair on June 26, 1931, at Smith-field, N. C, is void for that Judge Sinclair, who had heard defendant's motion at June term 1931, of the superior court of Wayne county, was without jurisdiction to make and sign the order out of term and...
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