Debnam v. Rouse, 201 N.C. 459 (1931)

Oct. 7, 1931 · Supreme Court of North Carolina

201 N.C. 459

WINNIE BARWICK DEBNAM and Husband, D. W. DEBNAM, v. G. A. ROUSE.

(Filed 7 October, 1931.)

1. Trial D a — Motion of nonsuit must be renewed at close of all evidence in order to present question of sufficiency of evidence.

Failure of tbe defendant to renew bis motion as of nonsuit at tbe close of all tbe evidence introduced on tbe trial of a civil action is a waiver by bim of bis motion theretofore made at tbe close of tbe plaintiff’s evidence. C. S., 567.

2. Appeal and Error A a — On appeal in civil action the Supreme Court is limited to matters of law or legal inference.

Tbe Supreme Court may only review matters of law or legal inference properly made to appear on tbe case appealed, and a verdict supported by sufficient legal evidence will be' sustained. Const., Art. IV, sec. 8.

Appeal by defendant from Devin, J., and a jury, at June Term, 1931, of GkeeNE.

No error.

Tbe issues submitted to tbe jury and their answers thereto, were as follows:

“1. Were the plaintiff, Winnie Barwick Debnam and defendant, G. A. Rouse, partners in tbe operation of tbe Standard Laconic as alleged in tbe complaint? Answer: Yes.

2. Is tbe defendant indebted to tbe plaintiff, Winnie Barwick Deb-nam, for her share of its profits in said business, and if so in what amount? Answer: $441.

3. Is tbe plaintiff, Winnie Barwick Debnam, indebted to tbe defendant, G. A. Rouse, and if so, in what amount? Answer: No.

4. Is tbe plaintiff D. W. Debnam, indebted to tbe defendant, G. A. Rouse, and if so, in what amount? Answer: No.”

Walter G. Sheppard for plaintiffs.

John Hill Paylor for defendant.

Pee CuRiam.

The defendant, at tbe close of plaintiffs’ evidence, made a motion in tbe court below for judgment as in case of nonsuit. C. S., 561. Tbe court below refused tbe motion, and in this we can see no error.

The defendant introduced evidence, but did not renew tbe motion to nonsuit at tbe close of all tbe evidence.

In Lee v. Penland, 200 N. C., at p. 341, citing numerous authorities, is the following: “When tbe plaintiff in a civil action has introduced his evidence and rested bis case tbe defendant may move for dismissal of the action, or for judgment as in case of nonsuit. If the motion is allowed the plaintiff may except and appeal; if it is not allowed the defendant may except, and if he introduces no evidence the jury shall pass upon the issues, and he may have the benefit of the latter exception on appeal. A motion for dismissal or for judgment of nonsuit made at the close of the plaintiff’s evidence and not renewed at the close of all the evidence is waived.” Price v. Ins. Co., ante, 376.

.“The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference,” etc. Const., Art. IY, sec. 8. On this record there was sufficient evidence to be submitted to the jury, the weight and probative force was for them to determine and not us. From the evidence they could have decided with the defendant, but they did not. Ye are bound by their findings of fact.

We think the issues submitted arise on the pleadings and determinative of the controversy, but it may be noted that defendant tendered no issues.

We think the evidence of plaintiffs constituted a partnership, under the authorities in this jurisdiction, and sufficient to be passed on by a jury. On the whole record we find in law no reversible or prejudicial error.

No error.