The record and case on appeal as to both defendants has been duly docketed in this Court. But defendant J. B. Brown has failed to file brief as required by Rule 27 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562. Such failure works an abandonment of his assignments of error, except those appearing upon the face of the record, which are cognizable ex mero motu. See S. v. Robinson, 214 N.C. 365, 199 S.E. 270, where authorities are assembled. However, as to defendant J. B. Brown, error does not appear upon the face of the record. Indeed, his counsel expressly states that he has abandoned his appeal. Hence it must be dismissed.
Nevertheless, as to the appeal by defendant Cola Brown, a different situation is presented. The pleadings raise an issue as to her individual liability, if any, separate and apart from that of her husband, the defendant J. B. Brown, and there is evidence tending to support such issue. The third issue tendered by defendant, and refused by the court, while not aptly phrased, is sufficient to present the question of her separate liability, if any. And it is apparent that the second issue submitted to the jury is not determinative of the case. It did not afford her opportunity to present her contention of nonliability based upon the evidence offered.
“It is essential in the trial of a civil action by jury,” as recently stated by Devin, J., in Turnage v. McLawhon, 232 N.C. 515, 61 S.E. 2d 336, “that the issues submitted shall embrace all material questions in contro*555versy, and that each party have opportunity to present fairly and fully his contentions of law and fact,” citing cases.
Moreover, the assignment of error based upon exception taken to the failure of the court, in charging the jury, to declare and explain the law arising upon her evidence given in the case, as required by the provisions of G.S. 1-180, as amended by Chapter 107 of 1949 Session Laws of North Carolina, is well taken. See Collingwood v. R. R., 232 N.C. 724, 62 S.E. 2d 87.
For reasons stated there must be a new trial as to defendant Cola Brown.
Hence, as to defendant J. B. Brown:
Appeal dismissed.
As to defendant Cola Brown:
New trial.