{
  "id": 8606734,
  "name": "JOHNNIE F. WALKER v. DOROTHY HELEN WALKER",
  "name_abbreviation": "Walker v. Walker",
  "decision_date": "1953-09-30",
  "docket_number": "",
  "first_page": "299",
  "last_page": "301",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T17:58:50.226870+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "JOHNNIE F. WALKER v. DOROTHY HELEN WALKER."
    ],
    "opinions": [
      {
        "text": "JOHNSON, J.\nThe plaintiff\u2019s 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 \u201clived separate and apart continuously for more than two years next preceding the commencement of the action; . . .\u201d The defendant, in answering, had made no specific denial of this allegation. But none was necessary. This because the statute, G.S. 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\u2019s specific denial, under discretionary leave of the court, could not have prejudiced the plaintiff.\nNext, 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\u2019s 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. Reidsville, 235 N.C. 140, 69 S.E. 2d 179; Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488.\nThe plaintiff assigns error in the charge as follows: \u201c. . . 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.\u201d 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., p. 553 et seq.; Hodges v. Malone & Co., 235 N.C. 512, 70 S.E. 2d 478; Poniros v. Teer Co., 236 N.C. 145, 72 S.E. 2d 9.\nThe plaintiff\u2019s 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.\nThe verdict and judgment will be upheld.\nNo error.",
        "type": "majority",
        "author": "JOHNSON, J."
      }
    ],
    "attorneys": [
      "M. Leonard Lowe for plaintiff, appellant.",
      "B. T. Jones for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "JOHNNIE F. WALKER v. DOROTHY HELEN WALKER.\n(Filed 30 September, 1953.)\n1. Divorce \u00a7 5a\u2014\nSince all material allegations of the complaint in a divorce action are denied by operation of law, G/S. 50-10, the discretionary action of the court in permitting the defendant to file a specific denial to a paragraph of the complaint cannot prejudice plaintiff.\n3. Divorce \u00a7 10b\u2014\nIn an action for divorce on the ground of two years\u2019 separation an issue as to whether the separation was brought about by plaintiff\u2019s own misconduct towards defendant is held sufficient in form to present, under proper instructions from the court, defendant\u2019s affirmative defense of abandonment, and plaintiff\u2019s assignment of error to the submission of the issue is untenable.\nS. Appeal and Error \u00a7 6c (5%) \u2014\nWhere there is no exception in the lower court to the submission of an issue, its submission cannot be challenged for the first time on appeal.\n4. Appeal and Error \u00a7 6c (o) \u2014\nAn assignment of error for that the court failed to properly charge the jury as to the law in the case and to apply the law to the facts in the case, is ineffectual as a broadside assignment of error.\n5. Divorce \u00a7 9b\u2014\nWhere, in an action for divorce on the ground of two years\u2019 separation, the court correctly places the burden of proof on the defendant upon the issue as to whether the separation was brought about by plaintiff\u2019s own misconduct, plaintiff\u2019s assignment of error to the charge in respect to the burden of proof on the issue cannot be sustained.\nAppeal by plaintiff from Sinh, J., and a jury, at February Term, 1953, of Rutherford. No error.\nCivil aetion by plaintiff husband for absolute divorce on the ground of two years\u2019 separation. G.S. 50-6.\nThe jury returned the following verdict:\n\u201c1. Has the plaintiff been a resident of the State of North Carolina for more than six months next preceding the institution of this action? Answer: Yes.\n\u201c2. Were the plaintiff and defendant married as alleged in the complaint? Answer: Yes.\n\u201c3. Have the plaintiff and defendant lived separate and apart from each other for more than two years next preceding the institution of this action, as alleged in the complaint? Answer: Yes.\n\u201c4. Was the separation brought about by the plaintiff\u2019s own misconduct toward the defendant? Answer: Yes.\u201d\nFrom judgment on the verdict denying the plaintiff divorce, he appeals, assigning errors.\nM. Leonard Lowe for plaintiff, appellant.\nB. T. Jones for defendant, appellee."
  },
  "file_name": "0299-01",
  "first_page_order": 349,
  "last_page_order": 351
}