Setzer v. Setzer

• Citation: 129 N.C. 296,40 S.E. 62
• Court: United States State Supreme Court of North Carolina
• Decision Date: 10 December 1901
• Parties: SETZER v. SETZER.

40 S.E. 62

129 N.C. 296

SETZER

v.SETZER.

Supreme Court of North Carolina.

Dec. 10, 1901.

DIVORCE—QUESTIONS ON FORMER APPEAL-EVIDENCE—ADMISSIBILITY—CUSTODY OF CHILDREN.

1. Where a judgment was rendered in the court below, on the transcript from the supreme court, in favor of plaintiff for a divorce, and adjudging that defendant be taxed with the costs, and defendant moved for a decree for sale of land adjudged to belong to her as tenant is common, and no appeal was taken from an order overruling the motion, and she also moved that the costs be taxed against plaintiff, and the motion was overruled, assignments of error for rendering decree of divorce and for ordering costs cannot be sustained, inasmuch as the questions of divorce and costs were adjudicated on the former appeal, and can only be reviewed on motion to rehear.

2. Under Code, § 1570, authorizing the court, within its discretion, to commit the custody of children, on divorce, to either parent, and section 1296, authorizing it to modify such orders from time to time, a decree as to the allowance for the support of a child, the care of which had been given to its mother, will not be reviewed.

Appeal from superior court, Catawba county; Councill Judge.

Action by Henry T. Setzer against Laura A. Setzer. Judgment for plaintiff. Defendant appeals. Affirmed.

L. L. Witherspoon, for appellant.

Self & Wbitener, for appellee.

COOK, J. This action was brought for a divorce a vinculo matrimonii, for causes assigned under Code, § 1285 (Acts 1895, c 277; Acts 1899, c. 211), and reviewed by this court upon plaintiff's appeal, at the February term, 1901. 128 N. C. 170, 38 S. E. 731. Upon motion for judgment in the superior court upon the transcript from this court, his honor rendered a decree in favor of plaintiff, in conformity to the opinion of this court, dissolving the bonds of matrimony, and adjudging that defendant be taxed with the costs. Defendant resisted said decree, and moved for a decree for the sale of the land (adjudged to belong to her as tenant in common, from which no appeal was taken) for partition, and for an account to be taken of the rents and profits, including the value of the timber cut from said land by the plaintiff, and that defendant have the care and custody of the minor child, and for an allowance for the support of the child, and that the costs be taxed against plaintiff. His honor overruled defendant's motion, and she excepted, and assigned as error: First for not rendering decree...