Rector v. Rector

• Decision Date: 12 December 1923
• Docket Number: (No. 549.)
• Citation: 186 N.C. 617,120 S.E. 195
• Court: North Carolina Supreme Court
• Parties: RECTOR . v. RECTOR.

120 S.E. 195

(186 N.C. 617)

RECTOR .

v.RECTOR.

(No. 549.)

Supreme Court of North Carolina.

Dec. 12, 1923.

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Suit by Bessie F. Rector against J. Bayles Rector. Motions to dismiss the suit and to remove it to another county denied, and defendant appeals. Affirmed.

The plaintiff and defendant were married in 1906 and lived together until February, 1923. The plaintiff alleges in her complaint that the conduct of the defendant had rendered her condition intolerable and burdensome and in February, 1923, while visiting friends in New Jersey, she became ill; the defendant was notified of her sickness and need of aid, but not only refused to give her the required aid, but sent to defendant her personal belongings and effects and abandoned her; she returned to Greensboro in May, 1923, where defendant lived, but he refused to see or talk to her, and she thereupon went to her sister's home in Asheville, where she has ever since resided.

On May 24, 1923, she went to Greensboro from Asheville, and while there articles of separation were prepared and executed by which the defendant was to pay her $85 per month subject to termination by death or divorce. Three of these monthly payments were made, beginning May 24, 1923, but defendant refused to make payments due August 24th and thereafter, and this suit was instituted November 24, 1923, for support and counsel fees.

At November term, 1923, the defendant] entered a special appearance and moved to dismiss the suit and also to remove it to Guilford county. Both motions were denied, and defendant appealed.

H. W. Cobb, Jr., of Greensboro, Harkins & Van Winkle, of Asheville, and Roberson, Jerome & Haworth, of High Point, for appellant.

Mark W. Brown, of Asheville, for appellee.

CLARK, C. J. The plaintiff's right of action is based upon C. S. § 1667, for alimony without divorce, which specifies that—

"The wife may institute an action in the superior court of the county in which the cause of action arose."

C. S. § 463, provides for actions to be tried where the property is situated; C. S. § 464, sets forth certain causes of action which must be tried where the cause of action arose; and C. S. §§ 465-468, provides for venue of certain other actions; but C. S. § 469, provides that—

"In all other cases the action must be tried in the county in which the plaintiffs or the defendants * * * reside at its commencement."

The word "may" as used In statutes in its ordinary sense is permissive and not mandatory. 20 A. & E. (2d Ed.) 237; 26 Cyc. 1590; Black on Statutes (2d Ed.) § 529. "May is construed must or shall only where public rights or interests are concerned." 26 Cyc. 1592; Johnston v. Pate, 95 N. C. 70.

Suits for alimony without divorce are within the analogy of divorce laws. Bishop, Marriage and Divorce, § 1412. Plaintiff can maintain an action for divorce in Buncombe. C. S. § 1657. Formerly an action for divorce had to be brought in the county where the husband resided and venue was jurisdictional. Smith v. Morehead, 59 N. C. 360.

The defendant having failed to pay the installments as provided under the agreement, the plaintiff can maintain this action. Cram v. Cram, 116 N. C. 288, 21 S. E. 197; State v. Beam, 181 N. C. 597, 107 S. E. 429. A wife who is forced for any cause to leave her husband, as in this case, may acquire a separate domicile. State v. Beam, supra; Sneed v. Sneed, 14 Ariz. 17, 123 Pac. 312, 40 L. R. A. (N. S.) 99.

The Legislature cannot reasonably be supposed to intend that a wife who is forced to go elsewhere than her husband's domicile to...