The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-11-06

the fire occurred, 1t was error not to
submit to the jury the question wheth-
er the title had passed to the alleged
purchaser.
barker V. Barker. From Guilford. APP
peal by both sides. No error.
Where the wife's answer in an ac-
ton for divorce alleged a cause of di-
Vorce against the husband and facts,
which if true, entitled her to alimony
pendente lite, and expenses of Htiga-
uon, II the judge in granting her m J.
uon for such alimony and expenses,
nnds the allegations of the answer TO
be true, he is not required by Secrlon
129l of The Code to state the Iac's
on which the motion was granted
Notice of motion for alimony per-
dente lite is not required where it APP
pears that the husband has left the
State for the purpose of defeating such
motion. Code Section 1921 roVjSO :.
The amount of alimony pendente
lite is within the discretion of the trial
judge and is not renewable except
where the discretion has been abuseu.
An appeal lies from an order grant
ing alimony pendente lite.
A sale of the husbands property
under execution was properly enjo'ned
pending his appeal from an order
granting alimony pendente lite.
Houston V. Greensboro Lumber Co.,
appellant. From Durham. Appeal
dismissed.
Summons issued against the
Greensboro Lumber CO. and j. 7. b.
Shaw, receiver" ana it was served
upon a. r. B. Shaw, receiver of The
Greensboro Lumber Co." The action
was dismissed as to receiver on Ge-
murrer. because leave of court nod
not been obtaind to bring action
against him. The company filed no
answer or demurrer and judgment
against it was taken by default and in
quiry. After adjournment of court for
the term, but within ten days thereaf-
ter defendant entered special ap-
pearance and gave notice of appeal
Held,
/. An appeal cannot be taken by
counsel appearing specially
2. Judgment by default and inquiry
against a defendant not served with
process is a nullity and an appeal
therefrom is premature.
TuIrentine V. Wellington. appellant.
From Orange. Affirmed.
State " Boyle. 104 n. G. 500 in ref
erence to charging the jury has been
overruled by State V. Beard. 124 n. G.
S11.
Where an employee was injured by
the negligence of another employee.
against which it was the duty of the
superintendent TO TFONlue, the QOClGlne
of fellow servant does not apply.
In an action against a quarry COM
pany to recover damages through al
legged negligence of defendant, the
plaintiff, an employe, alleged that he
was injured by a piece of stone negli-
gently rolled down the hill by another
employe working above plaintiff, and
| that defendants superintendent failed
to warn the employees of such danger
This court approves the charge of the
trial judge to the effect that 1t was
defendants duty to exercise ordinary
and reasonable care to prevent injury
to his employees while engaged in
| their work; that negligence is the fail
ure to do what a reasonable and oru-
dent person would ordinarily do under
similar circumstances. or doing what
prudent person would not do under
similar circumstances; that if defend
ant knew that the loose stones cleared
from the ridge would roll down the
embankment where other hands were
at work, it was defendants duty. tC
/ warn them of the danger, and failure
to do so was negligence; that it was
plaintiffs duty to exercise reasonable
/ and ordinary are TO avoid danger
and if by exercising such care he
could have discovered the danger ir
time to avoid 1t, he was "uilty of con
tributOry negligence.