Yancey County NcArchives Court.....Samuel B. Sparks, Olly Sparks V. 1873
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 September 22, 2008, 5:52 pm

Source: Nc Reports
Written: 1873

Olly Sparks v. Samuel B. Sparks
June Term 1873

In a petition for divorce, and for alimony pendente lite, it is error in the 
Court below to decide, at the return term, upon matter alleged as a bar to the 
petitioner's right to a decree. And upon the petitioner's making out a prima 
facie case, she is entitled under the Act of Assembly to alimony pendente lite.

Defendant, in answer to a petition for divorce, relies upon a record of a 
former suit between the petitioner and himself, his answer in which suit 
alleged adultery on the part of the petitioner, and in which the jury found 
that the petitioner had been guilty of adultery with J.M., or with "some one 
else:" Held, that such allegation was so indefinite and so vague as to be void 
and of no legal effect.

PETITION for divorce and alimony pendente lite, heard before Henry, J., Spring 
Term, 1873, of the Superior Court of Yancey County.

The following facts are agreed, and are all that are pertinent to the point 
decided at this term:

The plaintiff filed her complaint, alleging adultery, &c., and praying a 
divorce a vinculo matrimonii, and for alimony during the pendency of the suit. 
At the appearance term, the defendant having been served with process, the 
plaintiff moved the Court to allow her alimony pendente lite. Thereupon the 
defendant files an affidavit in which he swears that the issues now made in 
this case have been adjudicated and decided in a suit tried in McDowell 
county, in which the jury find a verdict in favor of defendant, and offers in 
evidence the transcript of the record of that suit. To this evidence plaintiff 
objected. Objection overrled and evidence admitted.

Malone, for appellant, submitted:
1. This case raises the question as to the power and duty of the Court in 
granting alimony pendente lite.
2. The complaint and affidavit being sufficient upon their face the Court 
should have granted alimony pendente lite at the appearance term, and it is 
error to consider the merits of the defense at the appearance term, and to 
refuse the allowance. Taylor v. Taylor, 1 Jones 538; Revised Code chap. 89, 
sec. 15, Acts of 1871-'2 page 839 and 840 and 841.

3. The former verdict of the jury finding most of the material issues against 
the plaintiff is no bar for the following reasons: first, the complaint 
alledges acts of adultery and general acts of prostitution subsequent to the 
finding of the jury; second, if it should be a bar to a divorce from the bonds 
of matrimony, still the Court should have entertained the application for the 
purposes of alimony, and for such other decrees as the equity of the case 
might warrant. Revised Code chap. 39; third, the issues were not specific in 
their statements, and therefore void, and have no binding validity. Wood v. 
Wood, 5 Ired, 674; fourth, the verdict of the jury is not binding on the 
power; it only presents facts for his adjudication.

4. A judgment is void when rendered contrary to the course of the Court. White 
v. Albertson, 3 Dev. 341; and hence in this case the jury not having found a 
state of facts "according to the course of the Court" a judgment thereon is 
void, and may be disregarded by the parties.

5. The application for alimony is not necessarily a part of the action for 
divorce. Cox v. Cox, 19 Ohio, 46.

6. The statement of the relation of husband and wife — the abandonment of 
def't — the condition and title to the property, and the support of the child 
constitute a case for alimony. Acts 1871-'72, (Title Marriage.)

No counsel contra in this Court.

Ruling of NC Supreme Court: Pearson, C. J. - Per Curiam - Order reversed, and 
alimony pendente lite allowed.



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