dissenting: This is an action by tbe wife against tbe husband for support without divorce, brought under sec. 1567 of tbe Revisal, as amended by cb. 24 of tbe Laws of 1919.
After tbe action was commenced tbe plaintiff moved upon notice for an. order' for support and counsel fees, wbicb motion was supported by tbe affidavit of tbe plaintiff alleging various acts of cruelty and mistreatment, failure of support by the defendant, and abandonment.
■ At tbe time wben tbe motion was returnable tbe defendant was not able to be present, and upon request tbe motion was continued to a future date, tbe judge requiring tbe defendant to pay $200 to the-plaintiff, wbicb was done, and in this order there are certain recitals wbicb will be hereafter referred to.
. Afterwards tbe husband appeared and filed an affidavit in wbicb be denied all of tbe material allegations in tbe affidavit of tbe plaintiff, and particularly tbat be bad separated himself from bis wife, and on tbe contrary alleged tbat sbe bad abandoned ber borne.
He also alleged tbat tbe plaintiff bad been cruel and abusive in ber treatment .of. him, tbat sbe bad refused to attend to tbe duties of tbe borne and tbat sbe was guilty of acts of infidelity. He also introduced supporting affidavits from a number of citizens showing tbat be bad been, kind and considerate, tbat be was a man of good character, and tbat tbe plaintiff was a woman .of bad character, tbat be bad provided for bis wife and .children, ,and tbat sbe bad abandoned him.
.There.were also six affidavits supporting tbe charge of infidelity.
Tbe plaintiff introduced five affidavits as to ber good character, but., all of - them except.one referred to ber .character when sbe was a young woman. -. .-
Upon ;tbe‘ bearing bis Honor made .'the following' order
*469“This cause coming on to be beard before bis Honor, J. Bis Ray, judge presiding, iltb Judicial District, and being beard upon allegations of tbe complaint, answer, and affidavits, and after árgument of counsel tbe court finds as a fact tbat upon tbe allegations of tbe complaint, and tbe proof tbe plaintiff would be entitled to a divorce from bed and board, and ■is entitled to alimony pendente Hie and attorney’s fees; it is therefore ordered tbat tbe defendant secure to tbe plaintiff $75 as alimony until further order of tbe court, and $250 attorney’s fees, in addition to tbe alimony herein allowed. This T7 May, 1920. J. Bis Rat,
Judge Presiding ’’
Tbe defendant excepted and appealed.
In actions for divorce from tbe bonds of matrimony or from bed and board, if the wife “shall set forth in her complaint such facts, which .upon application for alimony shall be found by tbe judge to be true and to entitle her to tbe relief demanded in tbe complaint, and it shall appear to tbe judge of such court, either in or out of term, by the affidavit of tbe complaint, or other proof, tbat she has not sufficient means whereof to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order tbe husband to pay ■her such alimony during the pendency of the suit as shall appear to him just and.proper, having regard to the circumstances of the parties.” Rev., 1566.
“The judge must find the essential and issuable facts, and set them out in detail so tbat bis court can determine from the facts as found whether tbe order for alimony can be upheld as tbe correct legal conclusion. . . . These findings, and the order predicated thereon, are not finally ^conclusive on the parties nor receivable in evidence on. tbe trial of tbe issues before tbe jury, unless modified on further notice and hearing, they are conclusive for tbe purposes of tbe motion, and operating as they do presently to deprive a defendant of bis property, they should be decided and set out in conclusive form and in such detail that tbe appellate court, as stated, may be able to determine whether they ■justify the order made.” Easeley v. Easeley, 173 N. C., 531.
It was held in the Baseley case tbat a finding by the judge that the “plaintiff bad made out a prima facie case on tbe issue of abandonment” was insufficient to support an order for alimony, and tbat the judge ■must “find and set out tbe relevant facts.” The finding in this case that “upon tbe allegations of the complaint and the proof tbe plaintiff would be entitled to a divorce from bed and board” is not more specific than tbe one condemned in tbe Easeley case.
If, however, the action was for support alone, and not for divorce (Rev., 1567), which is the action now before us, no order for alimony *470pendente lite could be made prior to cb. 24, Laws of 1919. Hodges v. Hodges, 82 N. C., 122, approved in Crews v. Crews, 175 N. C., 171.
In the latter action the only issuable facts were: “(1) As to whether the marriage relation existed at the time of the institution of the proceeding; (2) whether the husband separated himself from his wife,” and the reasons and excuses of the husband for the separation were irrelevant, the Court holding that the husband could not defeat the action for support by proof of the infidelity of the wife, but must wait and seek his remedy in an action for divorce, when, if successful, he would be relieved of the order for support, which was not final.
If the marriage and separation of the husband were admitted, the judge made the order for support after hearing both parties, but if either was denied, no order could be made until the controverted fact was settled by a jury. These principles are discussed and settled in Skittletharpe v. Skittletharpe, 130 N. C., 72; Hooper v. Hooper, 164 N. C., 2; Crews v. Crews, 175 N. C., 171.
In 1919 (ch. 24, Laws 1919) the statute permitting actions for support without divorce was changed very materially by substituting the following for sec. 1567 of the Revisal:
"If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, or if'he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the Superior Court of the county in which the cause of action arose to have a reasonable subsistence allotted and paid or secured to her from the estate or earnings of her husband. Pending the trial and final determination of the issues involved in such action, and also after they are determined, if finally determined, in favor of the wife, such wife may make application to the resident judge of the Superior Court, or the judge holding the Superior Court of the district in which the action was brought, for an allowance for such subsistence, and it shall be lawful for such judge to cause the husband to secure so much of his estate, or to pay so much of his earnings, or both, as may be proper, according to his condition and circumstances, for the benefit of his said wife and the children of the marriage, having regard also to the saparate estate of the wife: Provided, that no order for such allowance shall be made unless the husband shall have had five days notice thereof. Such application may be heard in or out of term, orally or upon affidavit, or either or both.” (Certain parts not material omitted.)
The statute does not change the issuable facts in actions for support, nor does it affect the principle that these must be passed on by a jury *471before a judgment can be rendered, but it does permit tbe judge to make an order for subsistence of tbe wife and children during tbe pendency of tbe action, thus conforming tbe procedure to applications for alimony pendente lite in actions for divorce, and, as on sucb applications, tbe material facts of marriage and separation by tbe husband must be found by tbe judge as a basis for bis order, wbicb findings are not conclusive on tbe parties nor receivable in evidence on tbe trial of tbe issues before tbe jury.
There is, however, a marked difference in tbe order, wbicb may be made in actions for divorce, and in those for support.
In tbe first, when tbe wife makes it appear “that she has not sufficient means whereon to subsist during tbe prosecution of tbe suit, and to defray tbe necessary and proper expenses thereof tbe judge may order tbe husband to pay her sucb alimony during tbe pendency of tbe suit,” etc., and sucb alimony includes counsel fees, but in tbe second under tbe act of 1919, tbe application is for an allowance for subsistence alone, without reference to tbe expenses of suit, alimony is not mentioned, and tbe order is for subsistence for tbe benefit of tbe wife and children.
When tbe act of 19Í9 was adopted, tbe General Assembly knew that in actions for divorce tbe wife must show that she did not have sufficient means to defray tbe expenses of suit, and that authority to order alimony included counsel fees. It was also known that in actions for support no order for subsistence or counsel fees could be made pendente lite, and, with a knowledge of these facts, having restricted tbe amendatory act to subsistence, we cannot extend its meaning to include tbe fees of an attorney, when tbe General Assembly has declined to do so.
Applying these principles, tbe order appealed from should, I think, be set aside, because it allows attorney’s fees in an action for support, wbicb is without authority of law, and there is no finding of fact, although tbe answer of tbe defendant denies that be has separated from tbe plaintiff, and, on tbe contrary, alleges that tbe plaintiff has willfully abandoned him, wbicb, if true, would not come within tbe meaning of tbe statute, wbicb allows an order to be made if tbe husband “shall separate himself from bis wife.”
It is true it is recited in a prior order that tbe defendant-bad left tbe plaintiff, wbicb might be sufficient, but tbe order from which tbe appeal is taken does not purport to be based on that order, wbicb was made before tbe answer was filed and before tbe defendant bad been beard on a motion for a continuance, “without prejudice to tbe rights of either party upon tbe final bearing,” and tbe recitals were for tbe purposes of tbe former order and should have no bearing on this appeal.
*472• As I understand tbe record, tbe material fact that tbe defendant has separated bimself from bis wife, wbicb means more than living apart, bas not been made, and without sucb finding no order for support or counsel fees should be sustained.
'Waliceb, J., concurs in tbis result.