Legal Opinion · Dissent

Cooke v. Cooke

Supreme Court of North Carolina

Decided December 3, 1913Published

Appeal by defendant from Peebles, J., at May Term, 1913, of ALAMANCE. Civil, action for divorce. Tbe action was to obtain a divorce a vinculo, under section 1561, Revisal, subsection 5 of Pell’s Revisal, by reason of separation of busband and wife existent for ten successive years, etc. Tbe suit was originally instituted in Alamance County by summons dated in 1910, and served, returnable to November Term, 1910, of said court, and complaint tbereon was duly filed.

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Appeal by defendant from Peebles, J., at May Term, 1913, of ALAMANCE. Civil, action for divorce. Tbe action was to obtain a divorce a vinculo, under section 1561, Revisal, subsection 5 of Pell’s Revisal, by reason of separation of busband and wife existent for ten successive years, etc. Tbe suit was originally instituted in Alamance County by summons dated in 1910, and served, returnable to November Term, 1910, of said court, and complaint tbereon was duly filed. Pending sucb suit, tbe present defendant instituted ber action for a divorce from bed and board by reason of wrongful abandonment…

1DissentWalker, J.

It is always a matter for regret when I am called upon, even by my sense of duty and a strong desire tbat justice may always prevail, to differ with my brethren. This is a very important question, and tbe result which has been reached by tbe majority, if in accordance with tbe law; and compelled by its edict, as supposed, is not in harmony with right and equity.

I think tbe opinion of tbe Court is erroneous in several respects :

1. Tbe Legislature, as I will presently show, and try to demonstrate, expressly provided tbat a suit of this kind can be brought only by tbe party injured.

2. If this…

2Cases cited18 opinions

  1. McGuire v. Chicago, Burlington & Quincy RailroadSupreme Court of Iowa · 1906
  2. Doyle v. . Brown, GuardianSupreme Court of North Carolina · 1875
  3. Harrison v. . HargroveSupreme Court of North Carolina · 1897
  4. Rackley v. RobertsSupreme Court of North Carolina · 1908
  5. People ex rel. Attorney General v. Michigan Central RailroadMichigan Supreme Court · 1906

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