Allred v. Kirkman

• Decision Date: 07 November 1912
• Citation: 160 N.C. 392,76 S.E. 244
• Court: North Carolina Supreme Court
• Parties: ALLRED. v. KIRKMAN.

76 S.E. 244

160 N.C. 392

ALLRED.

v.KIRKMAN.

Supreme Court of North Carolina.

Nov. 7, 1912.

1. Appeal and Error (§ 748^*)—Assignments of Error—New Matter.

New matter, such as the answer to a question, cannot be introduced for the first time in an assignment of error for the purpose of excepting to it, especially where the assignment was not sanctioned by the trial judge, but is inserted after his signature to the case on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.*]

2. Appeal and Error (§ 1048*)—Harmless Error—Questions Not Answered.

There is no available error in asking a question which was not answered.

[Bd. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.*]

3. Witnesses (§ 395*)—Impeachment.

Where defendant was impeached as a witness by plaintiff's testimony, he could prove his own declarations made before trial consistent with his own evidence, as in corroboration of himself.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.*]

4. Appeal and Error (§ 1052*)—Harmless Error—Admission of Evidence.

Where the issue of liability was answered in the negative, any error in admitting evidence in mitigation of damages was harmless.

[Bd. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]

Appeal from Superior Court, Randolph County; Allen, Judge.

Action by Causey Allred against J. Wesley Kirkman. From a judgment for defendant, plaintiff appeals. Affirmed.

Morehead & Morehead, of Greensboro, Elijah Moffitt and John T. Brittain, both of Ashboro, for appellant.

Hammer & Kelly and J. A. Spence, all of Ashboro, for appellee.

WALKER, J. Action by the husband for criminal conversation and alienation of his wife's affections. The jury returned this verdict: "(1) Did the defendant carnally know the wife of the plaintiff, as alleged in the complaint? Ans. No. (2) What damages is plaintiff entitled to recover7 No answer." Judgment for defendant, and plaintiff appealed.

1. Defendant proposed to prove by one Mary Nixon "that the plaintiff and his wife did not get along well together, " but the question was not answered, as the record discloses. An assignment of error must be based upon matter appearing in the case or record to which exception was previously taken. It has been said that, in an action by the husband for this wrong, his neglect of his wife, lack of affection for her, his indifference or cruelty toward her, and the unhappiness of their domestic relations before the alleged enticement or seduction may be shown in mitigation of damages. 21 Cyc. 1625 and 1632, citing numerous cases in support of the proposition. But we need not decide the question, as we do not think it was properly raised.

New matter cannot be properly introduced for the first time in an assignment of error for the purpose of excepting to it, especially when, as in this case, the assignment does not appear to have received the sanction of the judge, but is Inserted after his signature to the case on appeal.

We must be governed by the record insuch a case, and, as it appears from it that the question was not answered, there is no ground for the exception; an unanswered question not being objectionable. Morse v. Freeman, 157 N. C. 385, 72 S. E. 1056. in Worley v. Logging Co., 157 N. C. 490, 73 S. E. 107, Justice Allen, after stating that an assignment of error must be based upon an exception properly taken, says at page 499 of 157 N. C, at page 110 of 73 S. E.: "The preparation of the assignment of error is the work of the attorney for the appellant, and is not a part of the case on appeal, and its office is to group the exceptions noted in the case...