Jernigan v. . Neighbors
141 S.E. 586
N.C.
1928
Check Treatment
Adams, J.

In rendering judgment against the plaintiff, “notwithstanding the verdict” in bis favor, the trial court inadvertently fell into error. At common law a judgment non obstante veredicto could be granted only when the plea confessed the cause of action and set up matters in avoidance which, if true, were insufficient to constitute either a defense or a bar to the action. It was entered only upon the application of the plaintiff, and never in favor of the defendant. Under the modern practice, it may be given for either party, but only when the party against whom the verdict was returned is entitled to judgment upon the pleadings. 33 C. J., 1178; Fowler v. Murdock, 172 N. C., 349; Baxter v. Irvin, 158 N. C., 277; Doster v. English, 152 N. C., 339; Shives v. Cotton Mills, 151 N. C., 290. Here the judgment was not awarded upon the pleadings; it was granted upon “the pleadings and proof”— primarily because the “evidence was not sufficient to support the allegations of the complaint.” Tbe judgment, therefore, cannot be sustained on the ground that the defendants are entitled to relief non obstante veredicto.

The remaining questions are whether the inconsistent recitals in the judgment are not .such as to prevent the giving of relief to either party and whether a new trial is not necessary. If, as the judgment recites, the evidence was insufficient the motion for nonsuit should have been allowed; but the motion, although reserved, was disposed of, if at all, only inferentially after the verdict bad been returned. According to *233 the decision in Riley v. Stone, 169 N. C., 421, it should have been granted or refused at the conclusion of the evidence, for after verdict an action can be dismissed only for want of jurisdiction or for the plaintiff’s failure to state a cause of action. On this point the substantial recitals are that the motion was denied although it should have been allowed.

In the next place, if the verdict stands the plaintiff "is entitled to judgment ; although it is said that it “ought not to stand in good conscience,” it remains in force because the motion to set it aside was denied. While the verdict upon its face entitles the plaintiff to judgment, the judge refused to sign the judgment which the plaintiff tendered. If we simply reverse the judgment the verdict will stand, and in that event the plaintiff will recover damages to which, according to the judgment, he is not entitled upon the evidence; and as the motion to dismiss the action cannot now be allowed, we are of opinion that the judgment should be reversed, the verdict set aside, and a new trial awarded. The judgment differs materially from that which was rendered in Davis v. R. R., 170 N. C., 583, the procedure in which apparently was not presented for consideration. Rankin v. Oates, 183 N. C., 517.

New trial.