Barber v. . Barber

Barnhill, J. It is stipulated in the record that summons in the original cause was personally served on the defendant and it appears from the record that he made a general appearance and answered the plaintiff’s complaint. Can he now, on special appearance, challenge the jurisdiction of the court to hear plaintiff’s petition and motion in the cause? This is the only question presented and it must be answered in the negative. An action in court is not ended by the rendition of a judgment, but in certain respects it is still pending until the judgment is satisfied. Finance Co. v. Trust Co., 213 N. C., 369, 196 S. E., 340. Motion affecting the judgment but not the merits of the original controversy may be made in the cause. Land Bank v. Davis, 215 N. C., 100. This is particularly true of judgments allowing alimony in divorce actions and in actions for alimony without divorce, in which it may not be said that the judgment is in all respects final. C. S., 1667. Such actions are always open for motions in the cause to determine the amount of arrearage and to obtain the remedies permitted by statute for the enforcement of the order for alimony. It was not required that a new summons be served upon the defendant. Notice of motion under the statute was sufficient. This notice was duly served. It appears from this record, as stated, that the defendant is in court and is subject to its jurisdiction, on notice, to hear and determine motions in the cause. Want of jurisdiction of the court in such matters may not be challenged by special appearance. The right of the 'plaintiff to make the motion may not be thus questioned. Perhaps defendant’s appeal was premature. In any event, only a question of procedure is presented. We do not decide the right of the plaintiff to the relief sought in her petition and motion. Nor do we determine the merits of the controversy arising thereon. We merely hold that, as the defendant has received due notice of a motion in the cause in which he had theretofore made a general appearance, he may *235 now defend only by general appearance, by answer or demurrer or appropriate motion. Tbe court below properly protected his right in this respect by granting time in which to plead in such manner as he may be advised. The judgment below is Affirmed.