42 S.E. 562 | N.C. | 1902
This is an action by the wife for a divorce, under chapter 211, Laws 1899, alleging that her husband abandoned her, 21 November, 1898, and since said date has lived separate and apart from her and has contributed nothing to her support. The answer denies this allegation and sets up as recrimination adultery by plaintiff with three parties named, and asks for a divorce from her.
The jury returned as their verdict, as to the first and second issues, that the parties were married and had been residents of this State for two years next before the beginning of this action. As to the third issue, "Did the defendant abandon the plaintiff and live separate and apart from her, as alleged in the complaint?" the jury came into open court and stated that they stood eleven to one upon that issue, whereupon the counsel for plaintiff proposed that the finding of the eleven upon this (186) issue should be returned, by consent, as the verdict of the whole jury, which was agreed to by the defendant's counsel, and the jury then responded "No" to that issue. At the same time the jury announced their hopeless inability to agree upon the fourth, fifth and sixth issues, which were as to the charges of adultery by the wife with the three persons named in the defendant's answer. A juror was withdrawn and a mistrial ordered as to those three issues. The defendant then tendered a judgment "that as to plaintiff's cause of action the defendant go without day and recover his costs, and that the plaintiff be not allowed a divorce." This judgment the court declined to sign, upon the ground that the verdict on the third issue was by a majority of the jury, to which the defendant excepted and appealed.
It is in the power of the Superior Court to grant a new trial on one or more of several issues and to let the verdict on the others stand (Bentonv. Collins,
An appeal lies from the refusal of a judgment to which the party is entitled. Griffin v. Light Co.,
There was consent that the verdict on the third issue should be returned by eleven jurors. The authorities seem to be uniform *140
that in civil cases this may be done, but as to criminal (187) cases there is a division in the authorities, this State being among those which hold that it cannot be done. S. v.Scruggs,
Error.
Cited: Timber Co. v. Butler,
(188)