Reeves v. Reeves

• Decision Date: 31 January 1880
• Court: North Carolina Supreme Court
• Parties: J. K. P. REEVES v. RETTA REEVES.

82 N.C. 348

J. K. P. REEVES

v.RETTA REEVES.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL

ACTION for Divorce, tried at Fall Term, 1879, of MONTGOMERY Superior Court, before Buxton, J.

The feme defendant in this case applied for alimony pendente lite, by a motion in the cause, notice being waived by the plaintiff. The plaintiff moved to dismiss the application, for that, the law authorized the allowance of alimony only in a case where the feme was plaintiff, and if allowed at all here, it must be upon special proceeding commenced by summons. The court refused the plaintiff's motion, and made an order for alimony, from which the plaintiff appealed.

Mr. J. T. Crocker, for plaintiff .

Messrs. McKay, Mauney and Hinsdale & Devereux, for defendant .

ASHE, J.

There are but two points presented by the appeal: First, Whether a feme defendant is entitled to alimony pendente lite, in a petition for divorce; secondly, Whether an application for such alimony must be made by a special proceeding or by a motion in the cause.

The first act of our legislature on the subject of divorces was the act of 1814, which contains an enumeration of the causes for which a divorce may be had, either from the bonds of matrimony or from bed and board, and provides that in either case when the decree is in favor of the wife upon her petition, the court shall have power to decree her such alimony as her husband's circumstances will admit. The construction put upon this act was, that the wife was only entitled to alimony upon the final hearing of the cause. Wilson v. Wilson, 2 Dev. & Bat., 377.

Judge GASTON, who delivered the opinion in that case, held, that the usages and customs of the ecclesiastical courts in regard to the subject of divorces had not been adopted in this state. But Chief Justice RUFFIN, in the case of Crump v. Morgan, 2 Ired. Eq., 91, which was a bill in equity for divorce from the bonds of matrimony, said, that “it was an entire mistake to say that the common and civil laws as administered in the ecclesiastical courts of England, are not parts of the common law. Justice BLACKSTONE, following LORD HALE, classes them among the unwritten laws of England, as parts of the common law, which by custom are adopted and used in peculiarjurisdictions, 1 Blackstone Com., 79; Hale's Hist. Com. Law, 27, 32. They were brought here by our ancestors, as parts of the common law, and have been adopted and used here in all cases to which they were applicable, and wherever there has been a tribunal exercising a jurisdiction calling for their use. They govern testamentary causes and matrimonial causes. Probate and reprobate of wills stand upon the same ground here as in England, unless so far as statutes may have altered it.” If the ecclesiastical law, unaltered by statute, is in force here as a part of the common law, there would be no doubt of the power of the court to decree alimony pendente lite to the feme defendant in this case, for that law not only allowed alimony pendente lite, but allowed it to the wife whether she was plaintiff or defendant. 2 Bishop, 384; Shelford on Marriage and Divorce, 33, 586.

When two such eminent jurists as Chief Justice RUFFIN and Judge GASTON differ upon a legal question, it is difficult to decide, and might be...