17 S.E. 9 | N.C. | 1893
Testimony was introduced by both parties and the issues submitted to the jury under the charge of the court, to which no exception (403) was made. After verdict and judgment for the defendant, plaintiff appealed. The plaintiff, after verdict, moved for judgment upon the pleadings. This was properly denied, because an issue was distinctly raised by the answer, and was submitted to the jury without objection.
The plaintiff also moved for a certiorari to correct the case on appeal by setting out that the motion for judgment by plaintiff, after the verdict against him, was made "upon admissions in the testimony of the defendant upon the trial" as well as "upon the pleadings." The plaintiff avers that the judge is willing to make the correction. But if such correction of the case were made we cannot see how it would benefit the plaintiff. If admissions were made by the defendant in his testimony, as alleged, the plaintiff should have asked for instructions upon that aspect of the case. He did not do so, nor did he file any exceptions to the charge. We do not understand how he can get the benefit of an objection for an omission to charge by a motion non obstante veredicto. Indeed, that motion can only be made on the face of the pleadings. Walker v. Scott,
AFFIRMED.
(404)