{
  "id": 8659124,
  "name": "SETZER v. SETZER",
  "name_abbreviation": "Setzer v. Setzer",
  "decision_date": "1901-04-23",
  "docket_number": "",
  "first_page": "170",
  "last_page": "173",
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      "type": "official",
      "cite": "128 N.C. 170"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "35 N. C., 90",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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    {
      "cite": "107 N. C., 70",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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  "last_updated": "2023-07-14T15:44:14.013877+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "SETZER v. SETZER."
    ],
    "opinions": [
      {
        "text": "CooK, J.\nTbe object of tbis suit is to dissolve tbe bond of matrimony existing between tbe plaintiff and defendant.\nUpon tbe finding by tbe jury of tbe issues, bis Honor granted a decree of divorce a mensa et thoro, to' wbicb tbe plaintiff excepted. Tbe question thus presented for our decision is, wbetber bis Honor erred in not granting a decree of divorce a vinculo matrimonii, as prayed for.\nTbe relief sought is based upon tbe ground of abandonment, under sec. 1285 of Tbe Code, as amended by chapter 277, Acts of 1895, and chapter 211, Acts of 1899.\nTbe issues as found establish tbe marriage, residence, etc., and that \u201ctbe plaintiff left bis borne where tbe defendant resided, more than twelve months before tbe commencement of tbis action, and before tbe 1st of January, 1899.\u201d\nTbe 8th issue, \u201cWas plaintiff compelled to leave defendant and live separate from her on account of tbe cruel treatment and misconduct of defendant to plaintiff,\u201d was also found in tbe affirmative.\nUpon tbis verdict, it is clear to tbe Court that tbe plaintiff was entitled to a decree of dissolution of tbe bonds, pursuant to said Act of 1895, and that tbe Court below erred in rendering tbe decree, set out in tbe record, for divorce from bed and board. Tbe grounds upon wbicb tbe statute authorizes tbe dissolution is tbe abandonment by tbe wife and living separate and apart from her husband. Tbe method or manner by which the abandonment was obtained is not material. Whether she left him, or forced him to unwillingly leave her, is to the same effect and accomplishes the same purpose. Should the husband have driven his wife from his house, or obtained her removal by stratagem, or have withheld from her a support while there, he would have been deemed to have abandoned her. Bishop on Marriage, Divorce and Separation, Vol. 1, sec. 1711; High v. Bailey, 107 N. C., 70. But \u201cabandonment\u201d is not a complete cause for divorce; nor is \u201cliving separate and apart.\u201d Both must exist at the same time to constitute a cause of action. In this case it was the wife who, by her cruelty and misconduct, compelled the husband to leave and live separate and apart from her, which entitled him to the relief sought.\nHowever, in bar of his action, she contends that he is not entitled to a decree, because he is in pari delicto in that he has committed acts of adultery \u201cafter the separation;\u201d and it is so found by the jury in answer to the 16th issue. It is not charged that any infidelity existed upon his part until after he was driven away, notwithstanding the facts as found by the jury that she had refused him bed and cohabitation since the year 1890. This defence as thus established is unsound. In the case of Foy v. Foy, 35 N. C., 90, it is held (Pearson, J., delivering the opinion), \u201cIf a wife leave a husband and refuse to live with him without sufficient cause, and he after-wards lives in adultery, there is no cause for divorce; for the consequence may be ascribed to her prior violation of the duty of a wife. No one should be allowed to take advantage of his own wrong.\u201d To the like effect are Whittington v. Whittington, 19 N. C., 64, and numerous other cases in our reports.\nSo that she could not be considered the injured, but the injuring party, and, being the cause of the wrong, would not be allowed a decree in her favor. To sustain this defence, in bar, she must show a separate and distinct offence against the marriage relation, as established by law, which would be a cause for divorce. It must be such as would entitle her to a decree of divorce in an action against the plaintiff. Nelson on Divorce and Separation, secs. 433, 434; 2 Bishop, supra, sec. 381. This she has not done. Under our statutes, adultery alone, committed by the husband, is not a cause. He must separate from his wife \u201cand live in adultery.\u201d Code, sec. 1285, subsec. 1, neither of which is shown by the defendant.\nThe exceptions of the plaintiff are sustained and the judgment rendered in the Court below must be stricken out, and a decree for divorce from the bonds of matrimony be entered in conformity with the statute and the verdict of the jury.\nError.",
        "type": "majority",
        "author": "CooK, J."
      }
    ],
    "attorneys": [
      "Self & Whiiener, for tbe plaintiff.",
      "L. L. Witherspoon, for tbe defendant."
    ],
    "corrections": "",
    "head_matter": "SETZER v. SETZER.\n(Filed April 23, 1901.)\n1. DIVORCE \u2014 A Mensa et Thoro \u2014 A Vinculo \u2014 Abandonment\u2014The \u2022 Code, Sec. 1285 \u2014 Acts 1895, ch. 277 \u2014 Acts 1899, ch. 211.\nWhere a husband is compelled to abandon his wife on account of her cruelty, he is entitled to an absolute divorce.\n2. DIVORCE \u2014 Abandonment\u2014Adultery\u2014Defense.\nWhere cruelty of a wife compelled her husband to abandon her, adultery by him after the abandonment is no valid defense to his suit for divorce.\nActioN by Henry T. Setzer against Laura A. Setzer, beard by Judge Fredericlc Moore and a jury, at August Term, 1900, of Catawba County Superior Court. From a decree of divorce a mensa et flioro, instead of a vinculo, as prayed, tbe plaintiff appealed. \u25a0\nSelf & Whiiener, for tbe plaintiff.\nL. L. Witherspoon, for tbe defendant."
  },
  "file_name": "0170-01",
  "first_page_order": 206,
  "last_page_order": 209
}