Ragan v. Ragan
| Citation | 197 S.E. 554,214 N.C. 36 |
| Decision Date | 15 June 1938 |
| Docket Number | No. 751.,751. |
| Parties | RAGAN. v. RAGAN. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Durham County; C. L. Williams, Judge.
Action for absolute divorce by J. D. Ragan against Magnolia Ragan, who filed a cross-action for divorce a mensa et thoro and alimony pendente lite. From a decree permitting defendant to amend verification of answer and ex mero motu correcting a judgment entered in the action so as to require plaintiff to pay alimony pendente lite and counsel fees, and from a decree for an allowance of additional fees to defendant's counsel, plaintiff appeals.
First decree affirmed; second decree reversed.
Action for absolute divorce and cross action for divorce a mensa et thoro, and for alimony pendente lite.
This action was heard and dismissed on former appeal to this Court. 212 N.C. 753, 194 S.E. 458. A recital of the allegations of the complaint and of the answer, and of the findings of fact and of the terms of the decree for alimony pendente lite and counsel fees, is there set forth.
Thereafter, and at the March Term 1938, on hearing before Williams, J., decree was entered, permitting the defendant to amend verification of answer, and, ex mero motu, correcting the judgment entered in this action at the September Term 1937, from which former appeal was taken, to speak the truth and express the correct judgment, so that as corrected plaintiff be required to pay alimony pendente lite and counsel fees in amount and on dates therein provided.
To this decree plaintiff excepted and appealed to the Supreme Court, and assigns error.
Subsequently, and during the 4th week of said March Term, upon motion of defendant, Burgwyn, Special Judge presiding, entered a decree for an allowance of additional fees to counsel for the defendant. To this decree plaintiff excepted, and appealed to the Supreme Court, and assigns error.
J. W. Barbee, of Durham, for appellant.
Bennett & McDonald, of Durham, for appellee.
Plaintiff challenges the judgment of Williams, J., on three grounds, neither of which is tenable: (1) That the court erred in permitting the defendant to amend verification. It is discretionary with the trial judge to allow such amendment. Moore v. Moore, 130 N.C. 333, 41 S.E. 943. (2) That the allegations of the cross action do not state facts sufficient to constitute a cause of action. The allegations are sufficient to bring the cross action within the provision of C.S. § 1660. (3) That the findings of fact...
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