Walker v. Walker

Annotate this Case

77 S.E.2d 715 (1953)

238 N.C. 299


No. 164.

Supreme Court of North Carolina.

September 30, 1953.

M. Leonard Lowe, Forest City, for plaintiff, appellant.

B. T. Jones, Forest City, for defendant, appellee.

JOHNSON, Justice.

The plaintiff's first assignment of error is based on his exception to the ruling of the court in permitting the defendant to enter a specific denial to paragraph six of the complaint, in which the plaintiff alleges that he and the defendant "lived separate and apart continuously for more than two *716 years next preceding the commencement of the action; * * *" The defendant, in answering, had made no specific denial of this allegation. But none was necessary. This because the statute, G.S. ยง 50-10, declares in effect that the material allegations of the complaint in a divorce action shall be deemed and treated as denied. Therefore, since paragraph six of the complaint stood denied by operation of law, it was inconsequential whether or not the defendant entered a denial, and the entry of the defendant's specific denial, under discretionary leave of the court, could not have prejudiced the plaintiff.

Next, the plaintiff assigns as error the action of the trial court in submitting the fourth issue. The issue is sufficient in form to have presented to the jury, under proper instructions, the determinative question raised by the defendant's affirmative defense of abandonment. Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493. See also Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923. Besides, an inspection of the record discloses no exception in the lower court to the submission of the issue. The attempt to challenge the issue for the first time in this Court is unavailing. Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488.

The plaintiff assigns error in the charge as follows: "* * * that the court failed to properly charge the jury as to the law in such cases and to apply the law to the facts of the case." This assignment is based on no specific exception. It is broadside. The assignment is insufficient to bring up for review any part of the charge as given, or any omission in respect thereto. See Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C., page 553 et seq.; Hodges v. Malone & Co., 235 N.C. 512, 70 S.E.2d 478; Poniros v. Nello L. Teer Co., 236 N.C. 145, 72 S.E.2d 9.

The plaintiff's remaining assignment of error relates to the charge in respect to the burden of proof on the fourth issue. An inspection of the charge discloses that the court properly placed on the defendant the burden of proof as to this issue. The assignment is untenable.

The verdict and Judgment will be upheld.

No error.