54 S.E. 415 | N.C. | 1906
The following is taken from the official record in this case: "After the conclusion of the plaintiff's evidence and before the evidence closed, the plaintiff's counsel announced that the plaintiff would take a nonsuit. Judgment of nonsuit is entered and the plaintiff is taxed with the costs. No adverse ruling to the plaintiff was made after the motion of the defendant to nonsuit was overruled, and the court held that the plaintiff was entitled to have his case submitted to the jury, but disagreed with the plaintiff's counsel as to the measure of damages. On the next day, after the jury was discharged in the case, the plaintiff gave notice of appeal in open court."
It appears also in the record that at the close of the plaintiff's evidence the defendant had moved to nonsuit the plaintiff, which motion was denied. The defendant was engaged in introducing evidence, and had not concluded, when the plaintiff took the nonsuit. At (505) the time the nonsuit was taken, no reasons were given, and the plaintiff did not state that it was taken in consequence of any adverse ruling.
We think, furthermore, that according to the plaintiff's brief and argument, the adverse ruling complained of related solely to the issue of damages and not to the cause of action, upon the establishment of which the right to recover damages depends. Under the ruling, the plaintiff would have recovered some damages, much more than nominal. Under the decisions of this Court the plaintiff should have continued the trial, and by noting exceptions properly, he would have been able to *400
have this Court review every ruling made in the court below. We think the nonsuit was voluntary, premature, improvidently taken, and that under our decisions an appeal from a nonsuit under such circumstances will not lie.Hayes v. R. R.,
In the latter case, Chief Justice Smith, a lawyer and judge of long experience under both systems of practice, states the ruling governing the right to appeal when a nonsuit is taken, as follows: "The practice has long prevailed that, when the proofs are all in and the judge intimates an opinion that under the old practice the plaintiff cannot recover, or under the new fails to establish the issues necessary to his having judgment, he may suffer a nonsuit, and by appeal have the correctness of the ruling reviewed." This rule, which has long prevailed, has been approved recently by this Court in Hayes v. R. R., supra, and Midgett v. Mfg. Co.,
In Hayes' case, supra, which is cited and approved in Midgett's case,Mr. Justice Walker, speaking for the Court, says: "In order to avoid appeals based upon trivial interlocutory decisions, the right thus to proceed, viz., to take a nonsuit and appeal, has been said to apply (506) ordinarily only to cases where the ruling of the court strikes at the root of the case and precludes a recovery by the plaintiff. The plaintiff's right to take the course he did was challenged in this Court because the ruling did not cover the whole case, but left him ground upon which recovery could be had. But we do not find it necessary to resort to the said rule of practice to dispose of this appeal." "It is a well-settled rule of practice in this State that when on the trial the court intimates an opinion that the plaintiff cannot maintain the action, he may, in deference to the opinion of the court, submit to a judgment of nonsuit, assign ground of error, and appeal to this Court. In such cases the judgment is not regarded as one entered simply at the instance of the plaintiff; he submits to it with the understanding on the part of the court that he shall have the right to except and appeal." Merrimon, J., inHedrick v. Pratt,
This well-settled rule of practice is also recognized in Bank v. Comrs.,
According to this well-settled rule of practice, the plaintiff prematurely took a nonsuit, and his appeal must be dismissed.
Appeal dismissed.
Cited: Morton v. Lumber Co.,
