Moody v. . Moody ( 1896 )

Defendant appealed.

The facts are sufficiently stated in the opinion. This is an action for divorce and alimony pendentelite. The summons was issued 6 September, 1895, by the Clerk of Macon County Superior Court, N.C. directed to the sheriff of that county. The only return is, "Served 9 September, 1895," by one Dockins, Sheriff of Rabun County, Georgia. There was no attempt to show service by publication, nor in the manner prescribed by Laws 1891, ch. 120. The defendant, on the return day, made a special appearance and moved to dismiss the action for want of service, to which he was then entitled; but without filing exceptions to the refusal to dismiss at the same time, he filed his own affidavit (927) and several others, denying the allegations of the plaintiff's affidavit, which was treated as a complaint. This waived all irregularity in the service and put the defendant in court as completely as if the summons had been duly and legally served. The court then heard the affidavits and, without finding the facts, rendered judgment, making an allowance to the plaintiff, and the whole record is sent to this Court. That was erronoeous [erroneous]. The Code, sec. 1291, requires the plaintiff to set forth facts which "shall be found by the judge to be true," and to these facts he must apply the law of the case, and either party may appeal from his judgment. This has been held in other cases, and that the facts found by the court must appear in the record sent to this Court, Morris v. Morris, 89 N.C. 109; Griffith v. Griffith, 89 N.C. 113;Lassiter v. Lassiter, 92 N.C. 129. We must therefore send the case back, to the end that the facts may be found by the court, which this Court has no authority to do.

Remanded.

(928)