Perkins v. Perkins

Annotate this Case

59 S.E.2d 356 (1950)

232 N.C. 91


No. 532.

Supreme Court of North Carolina.

May 10, 1950.

*357 Henry L. Strickland, Charlotte, for plaintiff-appellee.

Elbert E. Foster, Charlotte, for defendant-appellant.

DEVIN, Justice.

On October 14, 1949, plaintiff instituted action for alimony without divorce, and for an allowance for subsistence and counsel fees pendente lite, under G.S. § 50-16. The summons was returned by the sheriff with the notation "defendant not to be found in Mecklenburg County." On October 29, following, the plaintiff had another summons issued labelled "alias summons," but subsequently this was dismissed by order of court as ineffective. However, by amendment to her complaint and affidavits setting forth that the defendant had abandoned her and left the state, and that he owned real property in the state, warrant of attachment was issued and service of summons and notice of attachment by publication was ordered. Upon the showing before him Judge Crisp, presiding, entered order November 3, 1949, requiring defendant to make certain payments to plaintiff for subsistence and counsel fees. The notice of summons and attachment were duly published, publication being completed December 1, 1949.

*358 The defendant appearing specially on December 29, 1949, moved to dismiss all proceedings subsequent to October 29, 1949, including order of the court of November 3, and the service by publication, on the ground that these were based upon an invalid attempt to continue the original action by a so-called alias summons, and were embraced in Judge Patton's order of dismissal. This motion was denied by Judge Crisp who was again presiding in the court, and the defendant's exception thereto presents the question for review.

We think the defendant's motion was properly overruled. While Judge Patton correctly held that the mere endorsement of the word "alias" on the summons issued October 29 did not make it in law an alias summons, Mintz v. Frink, 217 N.C. 101, 6 S.E.2d 804; Ryan v. Batdorf, 225 N.C. 228, 34 S.E.2d 81, and accordingly dismissed the cause of action based on that summons, this did not necessarily sever the connection between the subsequent proceedings and the summons of October 14, or render the proceedings void. Upon affidavits sufficient in form that defendant had left the state and was a nonresident warrant of attachment was levied on defendant's real property, and the summons and notice of attachment were duly served by publication under order of Court. Scott & Co. v. Jones, 230 N.C. 74, 52 S.E.2d 219; G.S. § 1-98; G.S. § 1-444. No discontinuance is apparent. It seems well settled that where service is had by attachment of property based upon affidavits sufficient in law and followed by publication in prescribed manner, the necessity of issuance of summons is obviated. Peters Grocery Co. v. Collins Bag Co., 142 N.C. 174, 55 S.E. 90; White v. White, 179 N.C. 592, 103 S.E. 216; Jenette v. Hovey & Co., 182 N.C. 30, 108 S.E. 301; Voehringer v. Pollock, 224 N.C. 409, 30 S.E.2d 374. Cases cited by defendant, Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215; McGuire v. Montvall Lumber Co., 190 N.C. 806, 131 S.E. 274, and Hatch v. Alamance R. Co., 183 N.C. 617, 112 S.E. 529, are not in point.

The effect of the order of Judge Patton may not be extended beyond the particular question ruled upon by him, and is not determinative of the question here presented.

By adequate statutes and the decisions of this court it has been established in this jurisdiction that in an action for alimony without divorce, upon issuance of summons and the filing of a verified complaint setting forth facts sufficient to entitle the complainant to the relief sought, the Judge of the Superior Court has power to require the payment by the husband of a reasonable amount for the wife's subsistence and counsel fees pendente lite, and the court may enforce its order by attachment against the property of a nonresident or absconding husband without notice, G.S. § 50-16, and in such case may also appoint a receiver to collect the income from the husband's property. Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502; White v. White, 179 N.C. 592, 103 S.E. 216; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436; Peele v. Peele, 216 N.C. 298, 4 S.E.2d 616; Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555; McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833.

Judgment affirmed.