{ "id": 8599327, "name": "C. M. BYERS v. SARA SHERMAN BYERS", "name_abbreviation": "Byers v. Byers", "decision_date": "1943-04-28", "docket_number": "", "first_page": "85", "last_page": "92", "citations": [ { "type": "official", "cite": "223 N.C. 85" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "222 N. C., 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629989 ], "opinion_index": -1, "case_paths": [ "/nc/222/0298-01" ] }, { "cite": "80 S. E., 64", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "164 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656198 ], "opinion_index": 0, "case_paths": [ "/nc/164/0001-01" ] }, { "cite": "103 S. E., 216", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657057 ], "opinion_index": 0, "case_paths": [ "/nc/179/0592-01" ] }, { "cite": "72 S. E., 861", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "157 N. C., 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656709 ], "opinion_index": 0, "case_paths": [ "/nc/157/0161-01" ] }, { "cite": "174 S. E., 921", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N. C., 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632334 ], "opinion_index": 0, "case_paths": [ "/nc/206/0672-01" ] }, { "cite": "194 S. E., 278", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616231 ], "opinion_index": 0, "case_paths": [ "/nc/212/0620-01" ] }, { "cite": "200 S. E., 436", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N. C., 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632524 ], "opinion_index": 0, "case_paths": [ "/nc/214/0662-01" ] }, { "cite": "215 N. C., 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628136 ], "opinion_index": 0, "case_paths": [ "/nc/215/0078-01" ] }, { "cite": "56 S. E., 874", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N. C., 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659404 ], "opinion_index": 0, "case_paths": [ "/nc/144/0212-01" ] }, { "cite": "62 S. E., 517", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "148 N. C., 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270396 ], "opinion_index": 0, "case_paths": [ "/nc/148/0442-01" ] }, { "cite": "57 S. E., 213", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N. C., 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661001 ], "opinion_index": 0, "case_paths": [ "/nc/144/0527-01" ] }, { "cite": "130 S. E., 7", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605475 ], "opinion_index": 0, "case_paths": [ "/nc/190/0418-01" ] }, { "cite": "140 S. E., 158", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "194 N. C., 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612740 ], "opinion_index": 0, "case_paths": [ "/nc/194/0532-01" ] }, { "cite": "40 S. E., 851", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "130 N. C., 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272658 ], "opinion_index": 0, "case_paths": [ "/nc/130/0072-01" ] }, { "cite": "101 S. E., 33", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N. C., 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273050 ], "opinion_index": 0, "case_paths": [ "/nc/178/0493-01" ] }, { "cite": "169 S. E., 818", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N. C., 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626757 ], "opinion_index": 0, "case_paths": [ "/nc/205/0064-01" ] }, { "cite": "95 S. E., 857", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N. C., 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660581 ], "opinion_index": 0, "case_paths": [ "/nc/175/0529-01" ] }, { "cite": "181 Wash., 689", "category": "reporters:state", "reporter": "Wash.,", "case_ids": [ 873803 ], "opinion_index": 0, "case_paths": [ "/wash/181/0689-01" ] }, { "cite": "104 N. C., 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651951 ], "opinion_index": 0, "case_paths": [ "/nc/104/0631-01" ] }, { "cite": "176 S. E., 250", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N. C., 859", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629152, 8629177 ], "opinion_index": 0, "case_paths": [ "/nc/207/0859-01", "/nc/207/0859-02" ] }, { "cite": "175 S. E., 85", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N. C., 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632538 ], "opinion_index": 0, "case_paths": [ "/nc/206/0706-01" ] }, { "cite": "108 S. E., 352", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655210 ], "opinion_index": 0, "case_paths": [ "/nc/182/0061-01" ] }, { "cite": "100 S. E., 590", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N. C., 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272339 ], "opinion_index": 0, "case_paths": [ "/nc/178/0339-01" ] }, { "cite": "80 S. E., 178", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "164 N. C., 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657379 ], "opinion_index": 0, "case_paths": [ "/nc/164/0272-01" ] }, { "cite": "196 S. E., 333", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "213 N. C., 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628015 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/213/0347-01" ] }, { "cite": "222 N. C., 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629989 ], "opinion_index": 0, "case_paths": [ "/nc/222/0298-01" ] }, { "cite": "19 N. C., 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274682 ], "opinion_index": 0, "case_paths": [ "/nc/19/0064-01" ] }, { "cite": "215 N. C., 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631509 ], "opinion_index": 0, "case_paths": [ "/nc/215/0685-01" ] }, { "cite": "101 U. S., 43", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5632841 ], "opinion_index": 0, "case_paths": [ "/us/101/0043-01" ] }, { "cite": "208 Pac., 49", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "120 Wash., 411", "category": "reporters:state", "reporter": "Wash.,", "case_ids": [ 754472 ], "opinion_index": 0, "case_paths": [ "/wash/120/0411-01" ] }, { "cite": "39 L. R. A. (N. S.), 1135", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "4 Cranch., 469", "category": "reporters:scotus_early", "reporter": "Cranch.,", "case_ids": [ 6759506 ], "opinion_index": 0, "case_paths": [ "/dc/4/0469-01" ] }, { "cite": "219 N. C., 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622823 ], "opinion_index": 0, "case_paths": [ "/nc/219/0299-01" ] }, { "cite": "220 N. C., 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11300911 ], "opinion_index": 0, "case_paths": [ "/nc/220/0200-01" ] }, { "cite": "76 S. E., 619", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "161 N. C., 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269906 ], "opinion_index": 0, "case_paths": [ "/nc/161/0170-01" ] }, { "cite": "66 S. E., 604", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "151 N. C., 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655438 ], "opinion_index": 0, "case_paths": [ "/nc/151/0536-01" ] }, { "cite": "215 N. C., 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629120 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/215/0239-01" ] }, { "cite": "181 S. E., 338", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609672 ], "opinion_index": 0, "case_paths": [ "/nc/208/0428-01" ] }, { "cite": "186 S. E., 346", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N. C., 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625709 ], "opinion_index": 0, "case_paths": [ "/nc/210/0264-01" ] }, { "cite": "10 S. E., 707", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 } ], "analysis": { "cardinality": 873, "char_count": 18167, "ocr_confidence": 0.491, "pagerank": { "raw": 5.55037022660772e-07, "percentile": 0.9470714315776712 }, "sha256": "b11857373d503eaf22fed60e9278448830053949af1469221b194e7203aea1fa", "simhash": "1:3bb6866e15961c1e", "word_count": 3283 }, "last_updated": "2023-07-14T18:13:50.990749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. M. BYERS v. SARA SHERMAN BYERS." ], "opinions": [ { "text": "Stacy, C. J.\nThe broad question for decision is whether an action for divorce may be maintained on the ground that \u201cthe husband and wife have lived separate and apart for two years\u201d (ch. 100, Public Laws 1937), when it is shown and pleaded in bar that such separation was the result of the plaintiff\u2019s wrongful abandonment of the defendant and their two children, and his offering such indignities to the person of the defendant as to render her condition intolerable and life burdensome. Specifically, the question posed is whether the amended answer states a good plea in bar, admitting for the purpose the truth of the facts alleged. 17 Am. Jur., 267; 27 C. J. S., 625.\nThe history of the \u201cseparation\u201d statute was given in part on the former appeal, reported in 222 N. C., 298, to which reference may be had to avoid repetition. See, also, Brown v. Brown, 213 N. C., 347, 196 S. E., 333. .\nBriefly, it may be recalled tbat tbe first separation statute in tbis State was a ten-year statute, enacted in 1907, cb. 89, Laws 1907.\nIn Cooke v. Cooke, 164 N. C., 272, 80 S. E., 178, it was beld by a sharply divided Court, tbat tbe plaintiff-in an action for divorce under tbe conditions named in tbe statute, as amended by cb. 165, Public Laws 1913, was entitled to a decree in bis or ber favor without reference to whether tbe. plaintiff or tbe defendant was in fault in bringing about tbe separation, and tbat tbe time covered by a decree a mensa ei thoro rendered in an action brought by tbe wife should not be excluded in computing tbe period of separation.\nThereafter, tbe Goohe case, supra, was rendered apocryphal by tbe recodification of tbe laws in 1919 \u2014 Consolidated Statutes \u2014 when tbe provisions of the separation statute were brought forward as subsection 4 of tbe general divorce section, C. S., 1659, which provides tbat \u201cmarriages may be dissolved and the parties thereto divorced from tbe bonds of matrimony, on application of the party injured, in tbe following cases,\u201d naming them. (Italics added.) Tbis was so declared in the cases of Sanderson v. Sanderson, 178 N. C., 339, 100 S. E., 590, and Lee v. Lee, 182 N. C., 61, 108 S. E., 352.\nTbe law remained in tbis condition, in respect of tbe \u201cparty injured,\u201d until tbe enactment of cb. 72, Public Laws 1931, in wbieb it was provided : \u201cMarriages may be dissolved and tbe parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for five years,\u201d etc. (reduced to two years by cb. 163, Public Laws 1933). And further: \u201cTbat tbis act shall be in addition to other acts and not construed as repealing other laws on tbe subject of divorces.\u201d\nIn two cases arising under tbe 1931 Act, as amended in 1933, it was beld tbat tbe applicant for divorce need not be \u201ctbe injured party.\u201d Long v. Long, 206 N. C., 706, 175 S. E., 85; Campbell v. Campbell, 207 N. C., 859, 176 S. E., 250. In neither of these cases, however, was there a plea in bar based on tbe wrong of tbe applicant. Tbe principle really applied was tbat stated by Avery, J., in Steel v. Steel, 104 N. C., 631, 10 S. E., 707: \u201cTbe plaintiff is not beld bound to anticipate and nega-. tive in advance all ground of defense to tbe action be brings, and petitions for divorce do not constitute an exception to tbe general rule.\u201d\nThen came the case of Parker v. Parker, 210 N. C., 264, 186 S. E., 346, decided 15 June, 1936, in which it was beld tbat \u201cwhile tbe applicant need not be tbe injured party, tbe statute does not authorize a divorce where tbe husband has separated himself from bis wife, or tbe wife has separated herself from her husband, without cause and without agreement, express or implied.\u201d\nFollowing this decision, the General Assembly of 1937 again amended the law so as to read: \u201cMarriages may be dissolved and the parties thereto divorced from the bonds of matrimony on application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of one year.\u201d And further: \u201cThat this act shall be in addition to other acts and not construed as repealing other laws on the subject of divorce.\u201d Ch. 100, Public Laws 1937. The section will appear in the General Statutes of 1943 as G. S. 50-6.\nThe plaintiff brings his action under the 1937 law. We have held in at least three eases that, notwithstanding the broad language of the separation statute, a husband may not ground an action for divorce on his own criminal conduct toward his wife. Reynolds v. Reynolds, 208 N. C., 428, 181 S. E., 338; Brown v. Brown, 213 N. C., 347, 196 S. E., 333; Hyder v. Hyder, 215 N. C., 239, 1 S. E. (2d), 540. No civil rights can inure to one out of his own violation of the criminal law. Lloyd v. R. R., 151 N. C., 536, 66 S. E., 604. It may be noted that in the Hyder case, supra, the defendant alleged a willful or criminal abandonment on the part of the plaintiff, whereas the issue which the jury answered in the affirmative was: \u201cDid the plaintiff wrongfully abandon the defendant, as alleged in the answer?\u201d The judgment denying the plaintiff a divorce on this issue was upheld on appeal.\nWe have also held that when the misconduct of the complaining party in an action for divorce a mensa et thoro is calculated to and does reasonably induce the conduct of the defendant, relied upon in the action, he or she, as the ease may be, will not be permitted to take advantage of his or her own wrong, and the decree of divorcement will be denied. Page v. Page, 161 N. C., 170, 76 S. E., 619. It is to be observed, however, that this was said in a case arising under the section which gives a right of action only to the \u201cparty injured.\u201d C. S., 1660. And it has been said that the \u201cparty injured\u201d means the party \u201cwronged by the action of the other,\u201d Lee v. Lee, supra, or \u201cthat the party to the marriage contract, who is in the wrong, cannot obtain a divorce.\u201d Sanderson v. Sanderson, supra. It may also be pointed out that expressions appearing in an opinion are to be interpreted in connection with the factual situation. under review. Light Co. v. Moss, 220 N. C., 200, 17 S. E. (2d), 10. For example, the expression used on the former appeal in this case \u201cthat the bare fact of living separate and apart for the period of two years, standing alone, will not constitute a cause of action for divorce,\u201d should be viewed in the light of its setting, and construed accordingly. It was not intended as a delimitation of the statute. Likewise, the statement in Hyder v. Hyder, supra,, that \u201ca husband is not compelled to live with his wife if he provides her adequate support,\u201d should be understood as having been used in connection with what constitutes a willful abandonment under C. S., 4441. So, also, the quotation in Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549, that \u201cseparation as applied to the legal status of husband and wife' means ... a cessation of cohabitation of husband and wife, by mutual agreement,\u201d should he noted as having been employed in reference to the theory advanced by the plaintiff in the case that the parties had mutually agreed to separate. \u201cEvery opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered\u201d \u2014 Marshall, C. J., in U. S. v. Burr, 4 Cranch., 469.\nThe cases holding that in an action for divorce a vinculo matrimonii, a plea in bar will not be sustained where the misconduct of the plaintiff falls short of such as would also constitute cause for absolute divorce are not in point. 17 Am. Jur., 269; 27 C. J. S., 625; Anno. 39 L. R. A. (N. S.), 1135. The defendant\u2019s plea is not technically one of recrimination, though it may be in genere, of kindred nature, or of like kind. Pharr v. Pharr, post, 115. Here, the very act of living separate and apart for two years, upon which the plaintiff bases his cause of action, was of his own wrongdoing. In other words, the plaintiff seeks to profit by his own tort. One in flagrante delicto is not permitted to recover in the courts. The courts are open for the determination of rights and the redress of grievances, but not for the rewarding of wrongs. To \u201cdo-justly\u201d and to \u201crender to each one his due,\u201d suum cuique tribuere, are the first commands of the law.\nIt is an accepted principle in the law of domestic relations that an applicant will not be granted a divorce because of a condition \u2014 which within itself may be a statutory cause for divorce \u2014 when it affirmatively appears that such condition was brought about by the applicant\u2019s own wrong. Pierce v. Pierce, 120 Wash., 411, 208 Pac., 49. The law generally forbids redress to one for an injury done him by another, if he himself first be in the wrong about the same matter whereof he complains. The maxim is, \"in pari delicto potior est conditio defendentis.\u201d 10 R. C. L., 353. No one is permitted to profit by his own fraud, or to take advantage of his own wrong, or to found a claim on his own iniquity, or to acquire any rights by his own crime. 1 R. C. L., 317. \u201cNo court will lend its aid to a party who founds his claim for redress upon an illegal act\u201d- \u2014 \u2022Bwayne, J., in The \u201cFlorida,\u201d 101 U. S., 43.\nIt is true, the statute under review provides that either party may sue-for a divorce or for a dissolution of the bonds of matrimony, \u201cif and when the husband and wife have lived separate and apart for two years,\u201d etc. However, it is not to be supposed the General Assembly intended to authorize one spouse willfully or wrongfully to abandon the other for a period of two years and tben reward tbe faithless spouse a divorce for tbe wrong committed, in tbe face of a plea in bar based on sucb wrong. Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5; Sanderson v. Sanderson, supra; Whittington v. Whittington, 19 N. C., 64. Nor is it to be ascribed as tbe legislative intent that one spouse may drive tbe other from their home for a period of two years, without any cause or excuse, and tben obtain a divorce solely upon tbe ground of sucb separation created by tbe complainant\u2019s own dereliction. McGarry v. McGarry, 181 Wash., 689, 44 Pac. (2d), 816. Out of unilateral wrongs arise rights in favor of tbe wronged, but not in favor of tbe wrongdoer. One who plants a domestic tbornbusb or thistle need not expect to gather grapes or figs from it.\nSo much for tbe factual averments of tbe plea in bar as contained in tbe complaint filed in tbe maintenance suit and here set up in defense, which are deemed to be true for purposes of tbe demurrer.\nWhen we come to tbe defendant\u2019s position in respect of estoppel by record or res judicata, however, quite a different question is presented. Medlin v. Medlin, 175 N. C., 529, 95 S. E., 857; Brown v. Brown, 205 N. C., 64, 169 S. E., 818; Price v. Edwards, 178 N. C., 493, 101 S. E., 33; 30 Am. Jur., 925. While tbe plaintiff there, defendant here, alleged an unlawful abandonment on the part of tbe plaintiff herein, this issue was not determined in tbe maintenance suit. Tbe jury found.in that action that tbe defendant there, plaintiff here, bad failed to provide bis wife and their two children with necessary subsistence according to bis means and condition in life, and that be bad offered such indignities to tbe person of tbe wife as to render her condition intolerable and life burdensome, without any fault on her part, as alleged in tbe complaint. But no issue was submitted to tbe jury in respect of tbe character of tbe separation. Its determination was not essential to tbe purposes of that suit. Indeed, in Skittletharpe v. Skittletharpe, 130 N. C., 72, 40 S. E., 851, it was said that in an action under C. S., 1667, tbe \u201cdefendant\u2019s reasons and excuses for separating from bis wife . . . were irrelevant and might have been stricken out upon motion.\u201d See Byerly v. Byetrly, 194 N. C., 532, 140 S. E., 158.\nWhat effect this circumstance of placing tbe character of tbe separation in issue in that suit, without immediate disposition, may have upon tbe future course of tbe litigation cannot now be determined. See Ellis v. Ellis, 190 N. C., 418, 130 S. E., 7; 30 Am. Jur., 927; Case Mfg. Co. v. Moore, 144 N. C., 527, 57 S. E., 213, 10 L. E. A. (N. S.), 734, 119 M. St. Rep., 983. At present we are concerned only with tbe plaintiff\u2019s demurrer. Tbe record in tbe maintenance suit would be conclusive as evidence, so far as it goes. Southerland v. R. R., 148 N. C., 442, 62 S. E., 517; Medlin v. Medlin, supra. If good in any respect or to any extent, tbe plea is not to be overthrown by demurrer. Pharr v. Pharr, supra; Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874. An order for support, either pendente lile or under C. S., 1667, without more, would not perforce defeat an action for divorce under ch. 100, Public Laws 1937. Lockhart v. Lockhart, post, 123; Briggs v. Briggs, 215 N. C., 78, 1 S. E. (2d), 118; Holloway v, Holloway, 214 N. C., 662, 200 S. E., 436; Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278; Howell v. Howell, 206 N. C., 672, 174 S. E., 921; S. c., ante, 62; Ellett v. Ellett, 157 N. C., 161, 72 S. E., 861. Such, an order is not final, and may be modified or set aside on a showing of changed conditions. C. S., 1666; White v. White, 179 N. C., 592, 103 S. E., 216; C. S., 1667; Hooper v. Hooper, 164 N. C., 1, 80 S. E., 64.\nThe demurrer was properly overruled, and the discretionary ruling on defendant\u2019s motion to amend her pleading is not reviewable on appeal. C. S., 547. The result is an affirmance of the judgment.\nAffirmed.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Thaddeus A. Adams for plaintiff, appellant.", "Carswell & Ervin and Robinson & Jones for defendant, appellee." ], "corrections": "", "head_matter": "C. M. BYERS v. SARA SHERMAN BYERS.\n(Filed 28 April, 1943.)\n1. Actions \u00a7 4: Equity \u00a7 Id\u2014\nNo civil rights can inure to one out of his own violation of the criminal law.\n2. Same\u2014\nThe courts are open for the determination of rights and the redress of grievances, but not for the rewarding of wrongs \u2014 one in flagrante delicto is not permitted to recover.\n3. Appeal and Error \u00a7 49b: Trial \u00a7 39b\u2014\nExpressions in an opinion are to be interpreted in connection with tbe factual situation under review.\n4. Pleadings \u00a7 3a\u2014\nA plaintiff! is not beld bound to anticipate and negative in advance all grounds of defense to the action he brings, and petitions for divorce do not constitute an exception to the general rule.\n5. Divorce \u00a7 2a\u2014\nNotwithstanding the broad language of the separation statute, a husband may not ground an action for divorce on his own criminal conduct towards his wife. A full review of recent divorce and separation statutes and decisions thereon.\n6. Same\u2014\nAn action for divorce may not be maintained on the ground that the husband and wife have lived separate and apart for two years, when it is shown and pleaded in bar that such separation was the result of plaintiff\u2019s wrongful abandonment of his wife and their children, and his offering of such indignities to defendant\u2019s person as to render her condition intolerable and life burdensome.\n7. Pleadings \u00a7 15\u2014\nA plea in bar is not to be overthrown by demurrer, if good in any respect or to any extent.\n8. Divorce \u00a7\u00a7 11, 13 \u2014 \u201d\nAn order for support, either pendente lite or under O. S., 1667, without more, will not perforce defeat an action for divorce under ch. 100, Public Laws 1937. Such an order is not final and may be modified or set aside on a showing of changed conditions. C. S., 1666.\n9. Pleadings \u00a7 21\u2014\nA discretionary ruling on a motion to amend pleadings is not reviewable on appeal. C. S., 547.\nAppeal by plaintiff from Johnson, Special Judge, at January Special Term, 1943, of MecicleNbueg.\nCivil action for absolute divorce on tbe ground of two years separation.\nTbe complaint, filed 7 March, 1942, alleges :\n1. That plaintiff and defendant were married in March, 1936, and lived together as husband and wife until February, 1940, when they separated.\n2. That plaintiff and defendant have lived separate and apart continuously for the past two years, and the plaintiff has resided in this State for a period of one year.\nWherefore, plaintiff prays that the bonds of matrimony be dissolved as provided by ch. 100, Public Laws 1937.\nDefendant filed answer 10 April, 1942, admitted the marriage and alleged that plaintiff and defendant lived together as husband and wife from March, 1936, until the plaintiff wrongfully abandoned her in September, 1940. She also admitted the plaintiff\u2019s residence in the State for a period of one year, but denied that they had lived separate and apart within the meaning of the divorce laws.\nIn a further defense and cross action the defendant asked for alimony \u25a0 without divorce or subsistence and counsel fees under C. S., 1667, as amended.\nThe plaintiff filed motion to strike the further answer and cross action under authority of Silver v. Silver, 220 N. 0., 191, 16 S. E. (2d), 834, and Shore v. Shore, 220 N. 0., 802, 18 S. E. (2d), 353, which was allowed. Whereupon, the defendant instituted an independent action for subsistence and counsel fees, alleging wrongful abandonment, etc., on the part of defendant, and upon denial of liability and issues joined, the jury found that the defendant therein, plaintiff herein, had failed to provide his wife and their two children with necessary subsistence and that he had offered \u201csuch indignities to the person of the plaintiff (the wife) as to render her condition intolerable and life burdensome, without any fault of the plaintiff, as alleged in the complaint.\u201d\nIn the meantime a trial of the present action resulted in verdict and judgment for defendant, from which the plaintiff appealed, and a new trial was awarded for error in the charge. 222 N. C., 298.\nOver objection of plaintiff, the defendant then applied to the court for leave to amend her answer and to set up in bar of the plaintiff\u2019s action the record in the case by the defendant for alimony without divorce.\nThe motion being allowed, the plaintiff interposed a demurrer to the plea in bar, which was overruled. From the two rulings, the plaintiff appeals, assigning errors.\nThaddeus A. Adams for plaintiff, appellant.\nCarswell & Ervin and Robinson & Jones for defendant, appellee." }, "file_name": "0085-01", "first_page_order": 137, "last_page_order": 144 }