This is the fifth time this case has come before this Court. See118 N.C. 840; 119 N.C. 588; 120 N.C. 446; 122 N.C. 747, where the facts and history of the whole matter will be found. It was held by this Court (119 N.C. 588) that under the trust deed of John Wilson, husband of defendant and father of plaintiff, the wife and children are tenants in common in the trust estate. The plaintiff is the only surviving child and owns two-thirds, and the defendant one-third of said estate. At the last trial, now here for review, the plaintiff, demanding her two-thirds of the net profits, rents, etc., in the hands of the trustee, introduced her evidence and rested her case. The defendant moved to nonsuit the plaintiff under the act of 1897, ch. 109. The plaintiff asked permission to introduce other and further evidence, which was allowed by the court, and the defendant excepted. Plaintiff introduced further evidence, and rested again. Defendant renewed the motion for nonsuit under the act of 1897, which was refused, and the defendant again excepted.
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.
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., 122 N.C. 832, and other cases, that the motion for nonsuit under the act of 1897, ch. 109, is a demurrer to the evidence, and the defendant by noting his exception preserves his right to have the motion passed on on appeal, although he proceeds to trial with his evidence, contrary to the former practice. Said act of 1897 seems to give the defendant two chances (1) with the court, (2) with the jury, but it gives no direction on the practice or procedure under its provisions. We have discovered nothing in The Code, or in any other statute, changing the long established rules of practice in our courts, and unless some statute is found inconsistent with the former practice and procedure, that system is still the rule. Ins. Co. v. Davis, 74 N.C. 78.
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, 4 N.C. 28 (468), it is held: "After the testimony in a cause is closed, the introduction of other witnesses is a matter within the sound discretion of the Court." Parrish v.Fite, 6 N.C. 258, says: "The court may in its discretion permit new witnesses to be introduced and examined before the jury after the argument of counsel is closed," but it ought not to be done except for good reasons shown to the court. In Barton v. Morphis, 15 N.C. 240, the ruling is that the refusal of the court to permit a witness to be reexamined is no ground for a new trial, it being discretionary with the court to permit it or not. S. v. Rash, 34 N.C. 382: "In criminal as well as civil cases all the testimony on both sides should be introduced before the argument commences. After that, the parties
have no right to introduce additional testimony, though the court in its discretion may permit it to be done." This rule will be found in later cases.
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.