McFetters v. . McFetters

'W’iNBORNE, J. Defendant, appellant, in brief filed on this appeal, states that he does not ask the review of any finding of fact in the judgment of the lower court, but challenges the right and the power of the court to render the judgment. Upon the findings of fact appearing in the judgment the challenge is untenable. The statute, C. S., 1667, as amended by chapter 123, Public Laws 1921, and by chapter 52, Public Laws 1923, under which this action is instituted, authorizes an independent action in which two remedies are provided : *734 “If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the Superior Court,” (1) “to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.” (2) “Pending the trial and final determination of the issues involved in such action, . . . the wife may make application to the resident judge of the Superior Court, or the judge holding the Superior Courts of the district in which the action is brought, for an allowance for such subsistence and counsel fees, and it shall be lawful for such judge to cause the husband to secure so much of his estate or to pay so much of his earnings, or both, as may be proper, according to his condition and circumstances, for the benefit of his said wife and the children of the marriage, having regard also to the separate estate of the wife . . .” In the present action the plaintiff in her complaint invoked both remedies. The allowance is made under the second. Thereupon, this question arises: Was the action pending when the court ruled on the motion for counsel fees for service theretofore rendered in the cause? We so hold. An action is deemed to be pending from the time it is commenced until its final determination. 1 Am. Jur., 455, Actions, sec. 64. See Pettigrew v. McCoin, 165 N. C., 472, 81 S. E., 701, 52 L. R. A. (N. S.), 79; also Barber v. Barber, 216 N. C., 232, 4 S. E. (2d), 447. In this State a civil action is commenced by the issuance of a summons. C. S., 475. The final determination is by judgment. C. S., 592. While a plaintiff, in cases where nothing more than costs can be recovered against him, may elect to be nonsuited, the nonsuit must be effected by a judgment of the clerk of Superior Court (C. S., 593) or by the judge at term. McIntosh, N. C. P. & P., 703; Bynum v. Powe, 97 N. C., 374, 2 S. E., 170; Oil Co. v. Shore, 171 N. C., 51, 87 S. E., 938; Caldwell v. Caldwell, 189 N. C., 805, 138 S. E., 329. In the present case the court makes specific finding that the judgment was presented after the hearing of attorneys’ petition and after the court had announced its decision. Hence, applying the above principle, the action was pending at the time the allowance of counsel fees was made. It is contended, however, by defendant that the “certificate and affidavit” of plaintiff filed in the cause on 1 April, 1941, had as of that date the effect of a nonsuit by plaintiff. In this connection, if it be conceded that plaintiff could so nonsuit her case, the finding of fact is that this “certificate and affidavit,” prepared by the attorney for defend *735 ant, was filed in this cause as an affidavit in support of defendant’s resistance to judgment allowing counsel fees against bim. This finding of fact, coupled with the further finding that the judgment of nonsuit was presented to the court after the hearing on the attorneys’ petition and after the court had announced its holding, negatives any suggestion that the “certificate and affidavit” were presented to the court in behalf of plaintiff as motion for judgment of nonsuit — particularly in view of the absence of a finding that it was so presented. Furthermore, when this case came on for hearing, after notice to defendant, plaintiff’s complaint, in which a cause of action within the meaning of the provisions of C. S., 1667, is alleged against defendant and in which allowance of counsel fees pendente lite is prayed, was a part of the record. Hence, the petition of the attorneys was no more than a motion to have the court act upon the prayer as made by plaintiff in that respect at the time she instituted the action. On the other hand, it is contended that in the “certificate and affidavit” of plaintiff she had withdrawn her complaint. This she could not do without the order of court, which the record fails to show she obtained. A pleading, when filed, passes beyond the control of the pleader and becomes a part of the record in the case. Thereafter the subject of its withdrawal, as a general rule, is a question addressed to the reasonable discretion of the court. 31 R. C. L., 593. In the light of what has been said above, the question as to the right of attorneys to continue a separate maintenance action against the wishes of their client for the sole purpose of having fees allowed them against the husband under C. S., 1667, does not arise. The judgment below is Affirmed.