Allred v. . Kirkman

Walker, J. Action by tbe husband for criminal conversation and alienation of bis wife’s affections. Tbe jury returned tbis verdict: 1. Did tbe defendant carnally know tbe wife of tbe plaintiff, as alleged in tbe complaint? Answer: No. 2. What damages is plaintiff entitled to recover? No answer. Judgment for defendant, and plaintiff appealed. 1. Defendant proposed to prove by one Mary Nixon “that tbe plaintiff and bis wife did not get along well together,” but tbe question was not answered, as tbe record discloses. An assignment of error must be based upon matter appearing in tbe case or record to which exception was previously taken. It has been said that, in an action by tbe husband for tbis wrong, bis neglect of bis wife, lack of affection for her, bis indifference or cruelty toward her, and tbe unhappiness of their domes-, tic relations before tbe alleged enticement or seduction may be shown in mitigation of damages. 21 Cyc., 1625 and 1632, citing numerous cases in support of tbe proposition. But we need not decide tbe question, as we do not think it was properly raised. New matter cannot be properly introduced for tbe first time in an assignment of error for tbe purpose of excepting to it, especially when, as in tbis case, tbe assignment does not appear to have received tbe sanction of tbe judge, but is inserted after bis signature to tbe case on appeal. We must be governed by tbe record in such a case, and as it appears from it that tbe question was not answered, there is no ground for tbe exception, an unanswered question not being objectionable. Morse v. Freeman, 157 N. C., 385. In Worley v. Logging Co., 157 N. C., 490, Justice Allen, after stating that an assignment of error must be based upon an exception properly taken, says, at page 499: “Tbe preparation of tbe assignment of error is tbe work of tbe attorney for tbe appellant, and is not a part of tbe case *394 on appeal, and its office is to group tbe exceptions noted in tbe case on appeal, and if there is an assignment of error not supported by an exception, it will be disregarded.” 2. Tbe defendant having been examined as a witness, in bis own behalf, was impeached by tbe plaintiff’s testimony. It was competent for him to prove bis own. declarations, which were consistent with his own evidence, and made before the trial, in corroboration of himself. S. v. Whitfield, 92 N. C., 831; Hooks v. Houston, 109 N. C., 623. The rule is thus stated by the present Chief Justice in Burnett v. R. R., 120 N. C., 517: “It is competent to corroborate a witness by showing that previously he had made the same statement as to the transaction as that given by him on the trial,” citing many cases in its support. 3. Defendant offered certain evidence in mitigation of damages, but as the second issue was not reached in the investigation by the jury, the first having been answered in the negative, no harm was done, even if the admission of this testimony was erroneous. We find no error in the case. No' error.