Smith v. Smith
Decision Date | 30 April 1958 |
Docket Number | No. 522,522 |
Citation | 103 S.E.2d 400,248 N.C. 298 |
Court | North Carolina Supreme Court |
Parties | John O. SMITH v. Myrtle Irene Kinney SMITH. |
Ottway Burton, Don Davis, Asheboro, for plaintiff appellant.
Ferree & Anderson, Asheboro, for defendant appellee.
Plaintiff appellant challenges the judgment from which appeal is taken upon the grounds that the trial judge erred, first in failing to make finding of fact in respect to his, plaintiff's, inability to pay more than he has paid, and second, in ordering imprisonment of plaintiff as specified.
The first point on which the challenge is made, as above stated, is, in the light of established principles set forth in decisions of this Court, well taken. See Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867, 871, in which in opinion by Parker, J., it is said: citing Lamm v. Lamm, 229 N.C. 248, 49 S.E. 2d 403; Smithwick v. Smithwick, 218 N.C. 503, 11 S.E.2d 455; Berry v. Berry, 215 N.C. 339, 1 S.E.2d 871; Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351; West v. West, 199 N.C. 12, 153 S.E. 600.
These cases sustain the same proposition that if the husband gives evidence on his inability to pay, there must be finding of fact by the court in respect thereto. And in the instant case there is such evidence.
Now we turn to the second ground upon which plaintiff appellant challenges the judgment below as above set forth.
In this connection we find it said in 12 Am.Jur. 392, Contempt, Sec. 6, that
We find that in Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157, 158, this Court had before it the point now considered. There this Court held that the defendant's 'contention that the court was without power to make an order, the effect of which might be to confine him in jail for more than thirty days, is without merit,' citing Green v. Green, 130 N.C. 578, 41 S.E. 784, and Cromartie v. Com'rs, 85 N.C. 211.
And then the Court went on to say: (now G.S. § 5-1), 'Civil contempt is a term applied where the proceeding is had (now G.S. § 5-8).
And the Court continued by saying: 'The contempt with which we are dealing in the present case falls within the latter category and is unaffected by C.S. § 981,' (now G.S. § 5-4), 'prescribing a thirty day limit to imprisonment for contempts falling within the provisions of the preceding sections,' citing Green v. Green, supra; Cromartie v. Com'rs, supra; Thompson v. Onley, 96 N.C. 9, 1 S.E. 620.
Moreover, the Court added that
The language used in Dyer v. Dyer, supra, seems clear and understandable. However confusion arises by reason of what is said in the short Per Curiam opinion in Basnight v. Basnight, 242 N.C. 645, 89 S.E. 2d 259. This was a contempt proceeding in a civil action for subsistence under G.S. § 50-16. The trial court, 'Defendant appealed. And the opinion in Supreme Court is as follows: ...
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