Satterthwaite v. . Davis

*570 Clare:, C. J. Tbe first question presented in the brief of the appellants was not adjudged in the court below, but it is now contended here for the first time that the rights of the plaintiff have been lost by laches. There are questions which may be presented for the first time on appeal in the appellate court which were not presented on the trial below, but those are almost, if not entirely, confined to questions ousting the jurisdiction, or in the nature of a demurrer that the allegations in the complaint do not set forth a cause of action, and this objection need not be considered by us.' Besides, there is nothing in the complaint or in the proof which would prove the plaintiff guilty of laches. Neither was the statute of limitations-pleaded, and, .therefore, if it might have had any bearing, it is waived. As to the assignments of error, the first, which was for the refusal of a nonsuit at the close of the plaintiff’s evidence, was waived, the defendant having offered testimony. The second assignment was for admission of the telegram from the plaintiff to her husband, dated 14 November, 1912. The plaintiff had testified, “I showed Mr. Sibley all telegrams and advised him of any communication which I had in any way,” and the record states that “this testimony was offered by the plaintiff and received by the court only as showing what had occurred between plaintiff and the witness, Sibley, whose depositions about the same matters had already been offered in evidence by the defendants.” The third assignment of error is expressly abandoned, as stated in the defendants’ brief. The fourth assignment of error is to the admission in evidence, over defendants’ objection, of an unsigned writing, which was identified as being wholly in the handwriting of testator, as follows: “If Mrs. Sat-terthwaite signs the agreement, no doubt, everything will be adjusted.” This paper was found, after testator’s death, in a box in which he had other papers and contracts. It was couched in terms appropriate to the transaction in controversy, and was properly submitted to the jury under instructions which we must take to have been with suitable cautions from the court as to the purposes for which this evidence was to be considered, since the charge of the court is not sent up. Assignment 5 is to the admission in evidence, over the defendants’ objection, of a letter from the witness Sibley to the testator in reference to particular matters about which he testified for the defendants. Assignments of error 6 and 7 are not to the admission of communications from the testator to the plaintiff, but to letters and telegrams wholly in the handwriting of the testator to his banker, and relate to the money admitted to have been paid to the wife under the agreement. The eighth assignment is a blanket assignment of error for the admission of letters from the testator to the plaintiff after full identification. *571 These were offered by the plaintiff and were competent for tbe purpose of showing the relation existing between her and her husband, both before and after the agreement of separation, and for the further purpose of showing that the plaintiff and her said husband lived together as husband and wife after the execution of said agreement. The defendants offered no objection to the instructions of the court under which these letters were considered by the jury. The answer had denied that the plaintiff and the testator lived together as husband and wife after the execution of the separation agreement. The plaintiff was not incompetent, under C. S., 1795, to testify that the signatures and papers were in the handwriting of the deceased. McEwan v. Brown, 176 N. C., 249; Sawyer v. Grandy, 113 N. C., 42; Ferebee v. Pritchard, 112 N. C., 83; Hussey v. Kirkman, 95 N. C., 63; Peoples v. Maxwell, 64 N. C., 313. And there are still other decisions to the same effect. The ninth assignment of error is to the denial of defendants’ motion, at the close Qf all the evidence, for a judgment of nonsuit. This ruling is not assailed in defendants’ brief upon any ground taken in the trial court, but upon the ground of laches, which is raised in this Court for the first time. The fullness of the evidence is such as to render any discussion of this assignment of error unnecessary. The remaining two assignments of error are merely formal. After full consideration of all the exceptions presented, we find No error.