Teasley v. . Teasley , 205 N.C. 604 ( 1934 )

Civil action for divorce a vinculo on the ground that "there has been a separation of husband and wife, and plaintiff and defendant have lived separate and apart for two years."

Answering, the defendant denies that the parties have lived separate and apart, within the meaning of chapter 163, Public Laws, 1933, for two years; and further avers "the truth concerning the separation" is, that plaintiff and defendant are living apart by agreement and under order of court that plaintiff shall support the defendant.

Motion by plaintiff to strike out the further allegation of the answer, pleaded in bar of plaintiff's right to a divorce, for that the same is not made in good faith but to delay a trial of the cause, the civil issue docket in Mecklenburg County being so congested that contested cases cannot be heard for a year or more.

Affidavits of crimination and recrimination were filed on both sides.

The only judgment appearing on the record is the following:

"The court overruled the motion."

Plaintiff appeals, assigning error. As we understand the record, the further averment of the answer, which the plaintiff seeks to have stricken out, is but an elaboration of the denial, previously made, of the allegation that the parties have lived separate and apart for two years within the meaning of chapter 163, Public Laws, 1933.

If the motion were allowed, the case would still remain on the docket as a contested case; and, in view of the affidavits relative to "the truth concerning the separation," we are not disposed to try to chart the course of the trial in advance of the hearing upon its merits. Pemberton v.Greensboro, ante, 599. It is not perceived that any harm has come to the plaintiff from the court's action, or that any injury is likely to result therefrom. The ruling will not be disturbed on the record as presented.

Indeed, it may be doubted whether the ruling affects such a substantial right as to make it appealable. Billings v. Observer, 150 N.C. 540,64 S.E. 435; Rogerson v. Lumber Co., 136 N.C. 266, 48 S.E. 647; Lutz v.Cline, 89 N.C. 186. The evidence as to the true nature of the separation would be competent with or without the explanatory allegation.

The case is not like Deloatch v. Vinson, 108 N.C. 147, 12 S.E. 895, cited and relied upon by plaintiff, or Ellis v. Ellis, 198 N.C. 767,153 S.E. 449.

Affirmed.