Hennis v. . Hennis

WAlkuR, J., after stating the case: The defendant moved to dismiss the action upon the ground that the summons was issued less than ten days before the time set for it’s return, but this matter was first heard by the clerk, who found as the fact that the summons was issued ten days before 22 January, 1920, which was the return day, and thereupon he overruled the motion to dismiss, and defendant appealed to the Superior Court, where the judge affirmed the action of the clerk, and after-wards, the defendant, having failed to further appear and file answer, allowed him time to plead, and the defendant afterwards filed his answer. There was no error in this ruling of the court. "We must take the facts, as found by the clerk, and affirmed by the judge, to be true, as they are not reviewable here. Coharie L. Co. v. Buhmann, 160 N. C., 385. The court having found that the allegations of the complaint are true, we can discover no error in it’s order providing for alimony pendente lite and counsel fees. The case comes directly and expressly within the terms of the statute, Revisal of 1905, sec. 1566, which are, that where it shall appear to the court that the facts set forth in the complaint are true and entitle her to the relief demanded therein, and it further appears that she has not sufficient means wherein to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order the husband to pay her such alimony during the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties. The plaintiff applies for divorce a mensa, and sets forth sufficient facts in her complaint which, if finally found to be true, will entitle her to the relief for which she prays, and the judge finds her allegations to be true, and that she has not sufficient means whereon to subsist during the prosecution of the suit, and to defray the' necessary and proper expenses thereof. This entitles her to alimony, as ordered by the judge. Lea v. Lea, 104 N. C., 603; Lassiter v. Lassiter, 92 N. C., 130; Allen v. Allen, (at this term); and also Medlin v. Medlin, 175 N. C., 529, where this question as to alimony is learnedly and exhaustively discussed by Justice Holce, and previous erroneous decisions corrected or overruled. The amount to be fixed for alimony and expenses of suit is within the sound judgment and discretion of the court, and the order in respect *608 thereto is not reviewable by this Court in the absence of gross abuse, which does not appear in this record. Moore v. Moore, 130 N. C., 333 (S. c., 131 N. C., 374); Barker v. Barker, 136 N. C,, 316; Allen v. Allen, supra. The law may prove to be harsh in some cases, for it may turn out that the husband was wholly in the right, and the wife wholly in the wrong, but he must submit to this apparent injustice with patience, hard though it may be, for the law so declares. No error.