Dale v. Dale, 8 N.C. App. 96 (1970)

May 6, 1970 · North Carolina Court of Appeals · No. 7026DC202

8 N.C. App. 96

EMERSON EUGENE DALE v. JASMINE JOAN DALE

No. 7026DC202

(Filed 6 May 1970)

1. Appeal and Error § 24— assignment of error — requisites

An assignment of error must be supported by an objection and an exception.

2. Trial § 6— stipulations — effect and duration

Stipulations made during a trial constitute judicial admissions and are binding upon tbe parties and continue in force for tbe duration of tbe trial unless limited in some manner at tbe time they are made.

Appeal by defendant from Stukes, District Judge, 8 September 1969 Session of District Court held in MecicleNBUrg County.

Emerson Eugene Dale (plaintiff) instituted this action against Jasmine Joan Dale (defendant) for an absolute divorce on the grounds of separation of one year. Defendant filed an answer alleging, among other things, that the plaintiff abandoned her, that she was a dependent spouse and entitled to reasonable support and maintenance.

Upon the trial the jury answered the issues in favor of the plaintiff, and from the judgment dissolving the bonds of matrimony and granting an absolute divorce, the defendant appealed to the Court of Appeals.

Fairley, Hamrick, Monteith & Cobb by Laurence A. Cobb for plaintiff appellee.

Edmund A. Liles for defendant appellant.

Mallard, C.J.

[1, 2] By stipulation contained in an addendum to the record, the parties deleted from the record the defendant’s objection and exception upon which her first assignment of error is based. This assignment of error relates to the admission into evidence of a judgment for separate maintenance dated 16 July 1965. The judgment, entitled Jasmine Joan Dale v. Emerson Eugene Dale (Docket No. M-4353-62), was entered in the Superior Court of New Jersey, Chancery Division, Bergen County. Since there was no objection or exception to the introduction of this judgment, this assignment of error does not present the question sought to be presented. See 1 Strong, N.C. Index 2d, Appeal and Error, § 24. Moreover, in an order denying plaintiff’s motion to strike portions of defendant’s answer, further answer, and counterclaim, it was found as a fact by the judge, without exception taken and without limitation, “that said Judgment upon stipulation and by agreement of the parties through their counsel was received in evidence in this cause.” Stipulations made during a trial constitute judicial admissions. They are binding upon the parties and continue in force for the duration of the trial unless limited in some manner at the time they are made, and thereafter a party may not take an inconsistent position. 7 Strong, N.C. Index 2d, Trial, § 6.

All of the defendant’s remaining assignments of error, which have been properly made and supported by reason or argument or authority cited in her brief, have been carefully considered. We find no prejudicial error in any of defendant’s assignments of error which are based on exceptions and jproperly presented as required by Rule 28 of the Rules of Practice in the Court of Appeals.

It is noted in the record on appeal that the plaintiff excepted to the entry of an order requiring him to pay $600 attorney fees to defendant’s attorney and gave notice of appeal. However, he made no assignments of error with respect thereto, and this question’ is not presented on this record.

No error.

Mobris and YaughN, JJ., concur.