Holcomb v. Holcomb , 7 N.C. App. 329 ( 1970 )

Campbell, J.

The granting or denial of a motion for temporary alimony (pendente lite) is within the discretion of the trial judge and as such is normally not reviewable on appeal. Griffith v. Griffith, 265 N.C. 521, 144 S.E. 2d 589 (1965).

However, the same may not be said about a dismissal of an action for alimony without divorce, as was done in this case by order dated 1 December 1969.

Issues of fact raised by the pleadings, as in the instant case, must be tried by a jury unless there has been a waiver of that right. G.S. 1-172.

A jury determination of “any issue triable of right by a jury” may be requested within 10 days of the filing of the last pleading “directed to the issue.” The failure of a party to make such a demand is a waiver of the right to a jury trial. G.S. 7A-196.

In this case, the judge entered his order dismissing the action within 10 days of the filing of the last pleading on 21 November 1969. He did not at this time have the capacity to act as the trier of the facts since the right to demand a jury trial could still have been exercised, and there was no waiver of this right nor was there consent of the parties for the trial judge to determine factual issues. The trial court did not find any facts even if he had had the authority to do so.

Reversed.

PARKER and HedricK, JJ., concur.