#### MRS. EVA BROWN v. HENRY WARD BROWN.

(Filed 14 September, 1921.)

1. Appeal and Error — Objections and Exceptions — Assignment oí Error— Record.

An exception taken for tbe first time in tbe appellant’s assignment of' error will not be considered on appeal, except as to tbe charge of tbe court, etc., O. S., 590 (2), it being required that it appear in tbe record that it bad been duly and properly taken.

S. Same — Motions—Nonsuit—Evidence—Divorce.

Where tbe husband appeals from a judgment in favor of bis wife, in her action for an absolute divorce, because of bis separation from her-for five years, under O. S., 1659 (4), amended by Public Laws of 1921, cb. 63, and assigns error only in tbe court’s refusing bis motion to nonsuit upon tbe evidence on tbe ground that be was insane for a part of the-time, it is necessary, so that we may pass upon its sufficiency, that the-evidence Should appear in tbe record and not in tbe assignment merely.

Appeal by defendant from Alien, J., at tbe July Term, 1921, of WASHINGTON.

Tbis is an action for divorce a vinculo, upon tbe ground that the-parties bave lived separate and apart from eacb other for five years before tbe commencement of tbis action, and was brought under the-provisions of Public Laws of 1921, cb. 63. Plaintiff bad previously obtained a decree for divorce from bed and board. Upon tbe findings-of tbe jury, judgment was entered for tbe plaintiff granting her an absolute divorce. Tbe defendant being insane,' appeared by guardian ad litem, who appealed from tbe judgment, and tbe only exception is. that tbe court refused to nonsuit tbe plaintiff, it being stated in tbe exception that it appeared from tbe evidence that defendant bad been an inmate of tbe State Hospital a part of tbe statutory period of five-years.

W. L. Whitley for plaintiff.

No brief filed by defendant.

WalkÉe, J.,

after stating tbe case: Tbe evidence is not in tbe record, and therefore we are unable to determine whether tbe insanity so appeared or not, and besides we should know at least tbe substance of the evidence in order to pass upon its legal sufficiency. We bave often held that tbe ground of exception must appear in tbe record, and not only in tbe exception or assignment of error itself, which is tbe case here. S. v. Jones (at this term), citing Wilson v. Wilson, 114 N. C., 155; In re Smith's Will, 163 N. C., 466; Todd v. Mackie, 160 N. C., 352; *43 Allred v. Kirkman, ib., 392; Worley v. Logging Co., 157 N. C., 490. Those cases apply directly to the exception taken in this case, for upon suck a motion as one for a nonsuit we must see wbat appears in the evidence so that we may adjudge for ourselves whether the motion was well based. Besides, even the exception does not state from whose evidence the alleged fact appeared, and if from the defendant’s alone, the motion was properly overruled. "We accept the evidence as true, upon such a motion, and view it in the light most favorable to the plaintiff, rejecting so much as is unfavorable to her, because the jury might do that very thing if the case were submitted to them. Morton v. Lumber Co., 152 N. C., 54; West v. Tanning Co., 154 N. C., 44. The court on a motion for nonsuit can only consider the plaintiff’s evidence and so much of the defendant’s as is favorable to him or supports his case. Shives v. Eno Cotton Mills, 151 N. C., 290; Brittain v. Westhall, 135 N. C., 492; Daniel v. R. R., 136 N. C., 517; Biles v. R. R., 139 N. C., 528. Defendant, as is attempted here, cannot state evidence in his exception, not appearing in the case, and then demur to it or ask for a nonsuit, or a dismissal of the case.

But if we should consider the verdict, though this is not permissible, the same result would follow. We get no more definite information from it than we do from the motion for a nonsuit or from the other parts of the record. It finds that the defendant is now (at the time of the trial) an inmate of the asylum, but there is nothing in the verdict to show how long he has been there or when he first became insane, or whether he has been continuously insane, and, if so, during what length of time. The record is entirely devoid of such information as we should have, to decide the question intended to be presented, but which is not properly raised. We must, therefore, refuse to reverse the judgment and grant a new trial.

If -the plaintiff had asked us to do so, we would have dismissed the appeal for want of a brief for the defendant (174 N. C., 837, Rule 34), but she did not do so, and we have considered the case on its legal merits.

No error.