McCall v. . GallowayMcCall v. . Galloway
Thеre is evidence in the record sufficient to be submitted to the jury fending to establish the allegations of the complaint. It is unnecessary аnd will serve no good purpose to set it out.
The defendant exсepted to the issues, but tendered no others. If the issues framed by the court are deemed insufficient to develop the case, the party prejudiced thereby must lay the
*354
foundation for an excеption and appeal by suggesting the proper corrections at the time.
Moore v. Hill,
The defendant having failed to tender such issues as hе deemed essential, cannot now assign as error the failure оf the court to submit such issues. Clark’s Code, sec. 391, and cases cited.
The issues submitted by the court are the real issues raised by the pleadings, and were properly submitted. Under them the defendant had oppоrtunity to submit any evidence pertinent in his defense.
Exception is taken to the ruling of his. Honor in admitting the testimony of Tom Loftis, a witness for the plаintiff, as to acts of intimacy between plaintiff’s wife and defendant subsequent to the time the action was brought.
This evidence was admitted оnly as corroborative of the principal allegation and to be considered by the jury only as it may tend to corroboratе the proof as to the relations of the defendant and plaintiff’s wife prior to the commencement of the action. ¥e 'see no error in this.
The defendant contends that the court erred in еxcluding the following evidence contained in the deposition оf Mrs. J. P. Malley:
“Did you ever hear Mrs. Etta McCall, wife of J. B. McCall, wh$e in the presence of her husband, make any statement" in regard to the suit pеnding between her husband and M. W. Galloway? Answer: fTes.’”
The plaintiff in apt time objected to thе foregoing question and answer. The objection was sustained, and thе defendant • excepted.
Question 20 in said deposition was as follows: “Please give, as nearly as you can, what the conversation was, and all that she said in his presence to you about this cаse ? Answer: Mrs. McCall told him in my presence that she was not going into cоurt and swear to any pack of lies for him or anybody else; that she had heard all about ■ swearing for him that she wanted to hear, and thаt she would die before she would be made to do such a thing. She said furthеr that he had made her go before the clerk of the court and swear enough to send her soul to hell, if she had been held accountable for it.”
*355
Of course, the declarations and conduct of the defendant are competent against him, but as we construe this, it is intended solely to put in evidence the declarations of the wife as against the husband, and it is therefore incompetent. This Court said in
Grant v. Mitchell,
There are several other assignments of error which it is unnecessary to consider.
We have examined the entire record, and find
No error.