#### BESSIE S. SPRINGER v. S. J. SPRINGER.

(Filed 12 January, 1927.)

1. Husband and Wife — Alimony—Statutes—Marriage.

In tbe wife’s application to tbe courts for alimony without divorce, O. S., 1667, it is not required that tbe judge find tbe facts upon wbicb be bases bis order allowing it.

2. Appeal and Error — Case—Dismissal—Record Proper — Affirmance of

Judgment.

Where tbe record on appeal contains no case settled, tbe appeal may be dismissed, or tbe Court may affirm tbe judgment of tbe lower court if no error appears upon examination of tbe record proper.

Appeal by defendant from Lane, J., at May Term, 1926, of Burke. Affirmed.

Self & Bagley and Wright & Stevens for plaintiff.

L. G. Grant and J ohn D. Bellamy for defendant.

Adams, J.

The plaintiff brought suit for alimony without divorce. C. S., 1667. Pleadings were filed and Judge Lyon made an order that the defendant pay the plaintiff $250 on or before 20 August, 1925, and $75 a month until 1 January, 1926, and retained the cause for further orders. Thereafter Judg;e Lane made an order permitting the defendant to file an amended answer within thirty days, but he required the defendant to pay to the clerk of the Superior Court of Burke County a certain sum as an allowance for the plaintiff’s attorneys. A provision allowing the defendant to raise this amount by a mortgage on his property was inserted in the order, the plaintiff says, at his request. Judge Lane’s order is dated 7 June, 1926, and the notice of appeal was given on 18 June, 192,6. In this notice there is a request that the judge then find the facts, but no such request was made at the hearing; there is also a request that the judge direct that the pleadings, the findings of fact which were not made, the appeal bonds, and the notice constitute the case on appeal.

We find nothing in the record showing that the case was ever submitted to the judge for settlement or for a compliance with the requests contained in the notice. There is no case on appeal and no error in the record proper. The judge was not required to find the facts under C. S., 1667. Price v. Price, 188 N. C., 640.

As the facts appear we could properly dismiss the appeal, but as no error appears in the record we affirm the judgment. Smith v. Mfg. Co., 151 N. C., 260.

Affirmed.