Sparks v. . Sparks , 69 N.C. 319 ( 1873 )

Assuming that in any case a plea in bar of an action for divorce, to wit: "former judgment against the petition" put in on affidavit, at the appearance term, can be allowed the effect to defeat the petitioner's application for alimony, pending the action, which we are not prepared to admit; it cannot be allowed that effect in the present case. The issues in the former case were tried Spring Term, 1872, and the petitioner now avers, as new matter, that "the defendant is now and has been living with Nancy Reston in his house, in open adultery, and they live together as man and wife." This in despite of "the finding," makes a prima facie case for divorce, and the petitioner was entitled to alimony, until she has opportunity to make good her allegation of new matter.

In respect to the issue upon the matter in bar, set out in the record of the former proceeding, to wit: the adultery of the petitioner, it will be noted that the allegation of this matter, which is afterwards converted into a bar of the right to divorce, is vague and indefinite, and seems to have been made alierndo.

"This defendant denies the allegation that Mary J., aged six years, is the issue of the marriage, but avers that the said Mary J. is a bastard; that he is not her father, she being born when he had not had intercourse with plaintiff for eleven months.

It will also be noted that the issue submitted to the jury as growing out of this allegation is likewise too vague and indefinite to be acted on by a Court, or to be allowed the effect of an estoppel of record, and a perpetual bar to any relief that the petitioner may ask for. The issue is in these words: "4th. Has the plaintiff been guilty of adultery with Josiah Moody, or "any one else?" to which the jury respond in the affirmative. Who can say whether the jury meant to find adultery with this Josiah Moody, who is for the first time mentioned, or with some one else — thus leaving the matter at large, and imposed upon the petitioner the burden of explaining every incident of her life from the time of the marriage, which was considerable and against the course of the Court, settled by the authorities in divorce cases, cited by Mr. Malone in his well considered brief.

We are of opinion that his Honor erred in deciding upon this matter in bar, at the return term, and as the petitioner made a prima facie case, she ought to have allowed alimony pendente lite.

We are also of opinion that the allegation of adultery on the part of the petitioner set up in the answer in the first proceeding and the issue found thereon, are both so indefinite and vague as to be void and of no legal effect by way of estoppel.

There is error; order refusing alimony reversed. This will be certified.