Garris v. Garris , 188 N.C. 321 ( 1924 )

Hoke, C. J.

At common law there was in strictness no statute of limitations barring a divorce proceedings, though a court having jurisdiction would at times refuse relief where there had been unreasonable delay in making the application, a principle which has been embodied in the English Divorce-Act, referring the question to the sound legal discretion of the trial court. Buswell on Limitations, sec. 191, note; 2 Bishop on Marriage and Divorce, sec. 108. Under our statute of limitations there is no provision which in express terms bars a divorce, and if such an action is barred with us it would be by C. S., 445, barring all actions not otherwise provided for in ten years. In O’Connor v. O’Connor, 109 N. C., 139, it seems to have been held that in proper instances the section referred to is applicable to actions for divorce.

As to the demand for alimony, while our legislation on the subject now provides for its award by separate and independent suit, C. S., 1667, it was formerly only allowable as ancillary to suits for other relief, usually in actions for divorce. Growing out of the obligation of a married man to support a deserving wife, it was a continuing liability, enforceable whenever the necessity for it should arise unless barred by some specific statute applicable. In the present case the application is for alimony pendente lite — for her support during the separation- — -and to enable her to properly present and maintain her suit, a right to which she is clearly entitled under our decisions and on the present aspect of the record. Medlin v. Medlin, 175 N. C., 529; Webber v. Webber, 79 N. C., 572; Barker v. Barker, 136 N. C., 316.

It is insisted for plaintiff, appellant, that this right to alimony arose when the separation took place in 1919, and being a liability then created by statute, is barred in three years by tbe express provision of tbe law. C. S.,. 441, subsec. 2. It might be answered that in the very section on which appellant chiefly relies, C. S., 1667, the right accrues to the wife as incident to the suit for independent alimony, and not necessarily at the time the separation took place, but the final answer to plaintiff's position is that defendant’s application here is under Eev., 1666, for alimony pendente lite, arising to her when the action is commenced and not before. The times designated in. all these sections of the statute, section 441 and others, begins to run from the accrual of the right — here, at the beginning of her suit and as incident to it, and in no aspect of the case is her application barred.

There is no error, and the judgment of the court below is

Affirmed.