Saunderson v. Saunderson

• Decision Date: 22 February 1928
• Docket Number: 13.
• Citation: 141 S.E. 572,195 N.C. 169
• Parties: SAUNDERSON v. SAUNDERSON et al.
• Court: North Carolina Supreme Court

141 S.E. 572

195 N.C. 169

SAUNDERSON v. SAUNDERSON et al.

No. 13.

Supreme Court of North Carolina

February 22, 1928

Appeal from Superior Court, Currituck County; Midyette, Judge.

Proceeding by Sarah J. Saunderson against J. F. Saunderson and others for allotment of dower to plaintiff as the widow of J. H Saunderson, deceased. Judgment for plaintiff, and defendants appeal. No error.

Judgment of absolute divorce on jury's findings of cruel and inhuman treatment rendering wife's life unbearable held void, as beyond court's jurisdiction.

Proceeding for allotment of dower. Plaintiff alleges that she was the wife of J. H. Saunderson at the date of his death, and that as his widow she is entitled to dower in the lands of which he died seized and possessed. Defendants, who are heirs at law of the said J. H. Saunderson, deny that plaintiff was his wife at the date of his death. They allege in their answer that the bonds of matrimony once existing between plaintiff and deceased were absolutely dissolved by a decree of the superior court of Currituck county at fall term, 1899. Plaintiff in her reply denies this allegation in the answer of defendants.

The issue submitted to the jury was answered as follows:

"Is the plaintiff entitled to dower in the lands of J. H Saunderson, as alleged in her complaint? Answer: Yes."

From judgment on the verdict, defendants appealed to the Supreme Court.

Ehringhaus & Hall, of Elizabeth City, for appellants.

Aydlette & Simpson, of Elizabeth City, for appellee.

CONNOR J.

This is a proceeding for allotment of dower. All the allegations of the petition are admitted in the answer, except the allegation that plaintiff was the wife of J. H. Saunderson at the date of his death. Defendants, who are his heirs at law, deny this allegation. They admit that the said J. H. Saunderson and the plaintiff intermarried some time prior to 1897. They allege in their answer that "at fall term, 1899, of the superior court of Currituck county, a decree of absolute divorce was signed after a jury verdict in said superior court, and that the bonds of matrimony theretofore existing between the said J. H. Saunderson and S. J. Saunderson were forever dissolved; reference to said decree being hereby made, and to the records of Currituck superior court."

At the trial, defendants offered in evidence the minute docket, fall term, 1899, of the superior court of Currituck county. The following judgment and decree is recorded on page 146 of said minute docket:

"North Carolina, Currituck County,

Superior Court, Fall Term, 1899.

J. H. Sanders v. S. J. Sanders. Decree.

This cause having been tried at fall term, 1898, of this court, and a jury duly impaneled having found all the issues in favor of defendant, who asks for a divorce, now, on motion of E. F. Aydlett, of defendant's counsel, it is considered, adjudged, and decreed by the court that the bonds of matrimony heretofore existing between the plaintiff, J. H. Sanders, and the defendant, S. J. Sanders, be and the same are hereby forever dissolved, and that the plaintiff pay the costs of this action to be taxed by the clerk of this court.

And it is further adjudged by agreement that the order heretofore made in this cause granting alimony pendente lite, be and the same is hereby vacated and annulled, and that the plaintiff be relieved, and he is hereby relieved from making any further payment thereof.

Let this decree be enrolled.

H. R. Starbuck, Judge Presiding.

Approved:

F. G. Skinner, Attorney for Plaintiff.

E. F. Aydlett, Attorney for Defendant."

It was admitted that the plaintiff therein named as J. H. Sanders is the identical person and J. H. Saunderson, formerly the husband of the plaintiff herein, and that plaintiff herein named as Sarah J. Saunderson is the identical person therein named as S. J. Sanders.

Plaintiff thereafter offered in evidence that part of the minute docket of Currituck superior court, p. 109, fall term, 1898, which reads as follows:

"J. H. Sanders, Plaintiff, v. Sarah J. Sanders, Defendant.

This cause coming on for trial, and both plaintiff and defendant being present, and represented by counsel, say they are ready for trial. Then comes the following jury to try this case, to wit: J. W. Newman, J. L. Waterfield, Jerry Davis, Ashley Carbell, E. W. Baum, John Conway, A. Cherry, W. A. Garmstead, Alexander Owens, Ferdinand Bonney, W. L. Owens, C. G. Aydlette; being chosen, tried, sworn, and impaneled, say they find the issues submitted in favor of defendants, as follows:

'(1) Were plaintiff and defendant married as alleged? Answer: Yes.'

'(2) Have plaintiff and defendant been residents in the state for two years next before action brought? Answer: Yes.'

'(3) Has plaintiff since marriage, by cruel and inhuman treatment, broken down defendant's health and made her life with him burdensome and unbearable? Answer: Yes.'

'(4) Did plaintiff drive defendant into the yard in the night of November and December, 1895, and force her to remain there, threatening her life and accusing her with disgraceful conduct, as set forth in sections 6 and 7 of the complaint? Answer: Yes.'

'(5) Did plaintiff, in nighttime, during months of November and December, 1895, drive defendant into his barn and stable, and force her to remain there, and threaten defendant's life and accuse her of disgraceful conduct, as stated in sections 6 and 7 of defendant's complaint? Answer: Yes.'

'(6) Has this conduct been so continued and repeated and of such kind as to render defendant's condition intolerable and life burdensome? Answer: Yes."'

All the original papers in the action entitled "J. H. Sanders v S. J. Sanders" have been lost. It was admitted that they can not be found, although a diligent search had been made for them. Entries on the minute docket of the superior court of Currituck county were offered in evidence, showing that the action in which the decree was rendered, at fall term, 1899, and in which the issues were answered by the jury at fall term, 1898, was pending in said court prior to May, 1898. An original summons in an action entitled "James H. Sanders v. Sarah Jane Sanders," dat...