31 S.E. 843 | N.C. | 1898
This is the fifth time this case has come before this Court. See
Defendant then introduced evidence, and the case was tried by the court and jury. The issues were found in favor of the plaintiff, and judgment was entered declaring that the plaintiff was entitled (626) to two-thirds of the rents and profits in fee, and defendant to one-third during her life, and remainder to the plaintiff. Appeal by defendant. This recital presents all the facts necessary to the consideration of the real question before us. *434
The question is, When the defendant first moved for nonsuit, was it the imperative duty of the court to pass upon the legal question presented by the motion under said act of Assembly, or had he the discretionary power to hear further evidence from the plaintiff against defendant's objection? The Court has held in Purnell v. R. R.,
Whilst The Code dispenses with the formal mode of commencing actions and of pleading, it does not dispense with the rules for conducting trials heretofore established, as essential to the administration of law. By a demurrer to the evidence, the case is put upon the sufficiency of the evidence which means the exitus issue, or end of the case, (627) and strictly speaking, no issue of law is raised until the opposing party joins therein. Co. Litt., 71 b. In the case we have, there was no joinder in demurrer, but the plaintiff moved for and obtained leave to give further evidence. We do not care, however, to put the case on this strict technical point of pleading.
Under the former rules of practice and procedure, had the court the power to receive other evidence on motion of the plaintiff after the defendant's motion for nonsuit as by demurrer, under the act of 1897, ch. 109? We find by former decisions that he had the power in the exercise of his discretion. In Kelly v. Goodbreed's Executors,
The argument made is that if the above rule of practice prevails, it destroys the act of 1897, ch. 109. Not necessarily so, for if the judge refuses to hear other evidence, the defendant puts to the (628) test the strength of the plaintiff's case on which he rested.
The charge of the court is very full, and seems to cover the material parts of the defendant's prayers for special instructions. The hardship of the result to the defendant was referred to in the argument, but, whatever we might think of that, we are not authorized to express any opinion about it.
Affirmed.