#### Mrs. E. V. HOOPER v. J. O. HOOPER.

(Filed 26 November, 1913.)

1, Husband and Wife — Action for Support — issues—Divorce—Motions — Judgment.

. In an action for support brought by the wife under the provisions of Revisal, see. 1567, the inquiry is confined to only two • material issues, the marriage and the separation. Hence, reasons or excuses of the husband,for the separation are irrelevant to the inquiry, as the judgment is not final, and should he' establish his right to an absolute divorce in his separate action, he may then.move in proceedings of this character to have the judgment therein modified or set aside.

2. Husband and Wife — Action for Support — Pleadings—Admissions —Formal Denials.

In proceedings brought for support by the wife under the provisions of the Revisal, see. 1567, an admission in the answer of the husband that he had ceased to occupy a room with his wife or be with her at any place in privacy, and that he.had notified his landlady that he would not be responsible for her board, is an admission of separation from his wife, though the allegation of separation in the complaint was formally denied in the answer.

Appeal by defendant from Lyon, J., at chambers, 4 liarch, . 1913; from Polk.

This is a proceeding for support. The defendant asked that • issues be submitted to a jury, which were refused, and he excepted.

*2He also offered affidavits containing charges of infidelity against bis wife, wbicb bis’ Honor refused to receive, and be excepted.

After bearing evidence, judgment was rendered in favor of tbe plaintiff, and tbe defendant appealed.

Fortune .& Roberts for plaintiff.

Smith & Shipman for defendant.

AlleN, J.

Tbis is a special proceeding for alimony, without divorce, brought under section 1561 of tbe Revisal.

Tbe defendant admits tbe marriage, and while be denies tbe allegation of tbe petition as to separation, be says in bis answer that be immediately ceased to occupy a room with bis’ wife or to be with her at any place in privacy, and that in order to protect himself, be informed bis landlady of bis troubles and that from that time on be would not be responsible for bis wife’s board, and authorized her to so inform bis wife and tell her bis reasons, wbicb is equivalent to an admission of a separation.

Tbe statute is one solely for support, and it provides a remedy for tbe wife, “if any husband shall' separate himself from bis wife and fail to provide her with ’necessary subsistence.”

It was, therefore, correctly held in Skittletharpe v. Skittletharpe, 130 N. C., 72, that only two material issues of fact can arise in tbe proceeding: “(1) as to whether the marriage relation existed at tbe time of tbe institution of tbe proceeding, (2) whether tbe husband separated himself from bis wife,” and also that tbe reasons and excuses of tbe husband for tbe separation are irrelevant to tbe inquiry.

If tbe plaintiff is guilty of tbe acts charged against her, tbe defendant may have bis remedy in- an action for divorce, and as tbe judgment in tbis proceeding is not final, be could then move, to modify or set- it aside.

In tbe Skittletharpe case tbe Court says: “It is not contemplated by tbe statute that tbe judgment should be final and conclusive; for should tbe husband return to tbe wife and resume bis marriage relations and obligations, tbe necessity for such a provision would cease; or, should defendant institute a suit for divorce (which is not permitted by tbe statute to be done *3until six mouths, after obtaining the information for such cause of action) and obtain an absolute divorce, it is certain that he ought to be relieved from her further support, which could not be done with a final judgment binding upon the parties.”

It follows, as there are no issues of fact raised by the pleadings requiring submission to a jury, and as the charges in the affidavits offered by the defendant are immaterial now, that there is no error in the proceedings in the Superior Court.

Affirmed.