Hyder v. . Hyder

Connor, J. Chapter 72, Public Laws of North Carolina, 1931, as amended by chapter 163, Public Laws of North Carolina, 1933 (N. C. Code of 1935, sec. 1659 [a]), reads as follows: “SectioN 1. Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on the application of either party, if and when there has been a separation of husband and wife, either under a deed of separation or otherwise, and they have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of one year. “Sec. 2. That this act shall be in addition to other acts and not construed as repealing other laws on the subject of divorce. “Sec. 3. That this act shall be in force from and after its ratification.” This act was in full force at the date of the commencement of this action. The plaintiff relies upon its provisions for the relief prayed for in his complaint. He does not rely upon the provisions of subsection 4 of C. S., 1659. For that reason, he does not allege, nor was he required *489 to prove, that “be is tbe injured party,” as would bave been tbe case bad be relied upon its provisions. Sanderson v. Sanderson, 178 N. C., 339, 100 S. E., 590. Construing the statute applicable to this action, it was said in Parker v. Parker, ante, 264, 186 S. E., 346: “This statute authorizes a divorce on the application of either the husband or the wife, without regard to whether or not the applicant is the injured party (Long v. Long, 206 N. C., 706, 175 S. E., 85; Campbell v. Campbell, 207 N. C., 859, 176 S. E., 250), when there has been a voluntary separation, under a deed of separation or otherwise, of husband and wife, and after such separation they have lived separate and apart from each other for two years. It does not authorize a divorce when the husband has separated himself from his wife, or the wife has separated herself from her husband, without cause and without an agreement, express or implied, although, after such separation, be or she has lived separate and apart from the abandoned wife or husband for two years.” In the instant case, the defendant in her answer denied that there had been a separation of plaintiff and defendant in 1928. She alleged that plaintiff had wrongfully and unlawfully abandoned and deserted her. If such be the case, the plaintiff is not entitled to a dissolution of the marriage, and a divorce from the bonds of matrimony between him and the defendant in this action. Parker v. Parker, supra; Reynolds v. Reynolds, 208 N. C., 428, 181 S. E., 338. There was error in the refusal of the trial court to submit the issue tendered by the defendant, and in its ruling that evidence tending to show that plaintiff wrongfully and unlawfully abandoned and deserted the defendant was not admissible at the trial of this action. The defendant is entitled to a new trial. It is so ordered. New trial. Stacy, C. L, concurs in result.