#### GRADY A. ZIGLAR v. LORRAINE ELIZABETH ZIGLAR.

(Filed 31 January, 1946.)

1. Trial § 17—

Plaintiff instituted suit for absolute divorce on ground of adultery. Defendant set up cross-action for divorce a mensa, et thoro alleging, inter alia, adultery on tbe part of plaintiff. At tbe close of tbe evidence defendant took a voluntary nonsuit on lier cross-action. Helé: Evidence of adultery on tbe part of plaintiff was competent at tbe time of its introduction, and in tbe absence of motion to strike when defendant withdrew her cross-action, plaintiff’s contention that he was unduly prejudiced by its admission is untenable. Rule 21.

3. Trial § 49—

Tbe setting aside of a verdict on tbe ground that it is contrary to tbe weight of tbe evidence is addressed solely to tbe discretion of tbe trial court. G. S., 1-207.

Appeal by plaintiff from Nettles, J., at September Term, 1945, of FORSYTH.

Civil action for absolute divorce on ground of adultery.

Tbe defendant denied tbe allegations of tbe complaint, pleaded condo-nation, and set up a cross-action for divorce a, mensa et thoro on tbe ground that plaintiff’s improper relations with other women and indignities offered to tbe defendant were such as to render her condition intolerable and life burdensome.

Tbe case was tried on tbe allegations of tbe complaint and tbe cross-action, with evidence to support each and all of tbe allegations.

At tbe close of tbe evidence, tbe defendant took a voluntary nonsuit, without prejudice, on her cross-action; whereupon tbe ease was submitted to tbe jury on tbe allegations of tbe complaint.

Tbe jury answered tbe issue of adultery in favor of tbe defendant. From judgment denying tbe plaintiff a divorce, be appeals, assigning errors.

John D. Slawter and Richmond Rucker for plaintiff, appellant.

Hoyle C. Ripple for defendant, appellee.

*103Stacy, C. J.

Plaintiff assails tbe validity of the trial on the ground that he was unduly prejudiced by the admission of testimony tending to show adultery on his part. This evidence was competent, at the time of its introduction, as it was in support of the allegations of the cross-action. In re Southerland, 188 N. C., 325, 124 S. E., 632; Rule 21, Rules of Practice in the Supreme Court, 221 N. C., 558. There was no motion to strike when the defendant withdrew her complaint against the plaintiff. On the record as presented, the exception cannot be held for reversible error. S. v. Hawkins, 214 N. C., 326, 199 S. E., 284; S. v. Tuttle, 207 N. C., 649, 178 S. E., 76, and cases cited.

Nor is the court’s charge on the issue of adultery open to valid objection. The issue was one of fact with the evidence contradictory. The jury has answered in favor of the defendant.

True it is, the plaintiff’s evidence was direct and positive, and he complains that the verdict is clearly contrary to the weight of the evidence. But this was a matter addressed to the sound discretion of the trial court. G. S., 1-207; Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686.

We have discovered no valid exception on the record. The verdict and judgment will be upheld.

No error.