Avent v. Millard, 225 N.C. 40 (1945)

Feb. 28, 1945 · Supreme Court of North Carolina

225 N.C. 40

H. M. AVENT v. D. W. MILLARD and GERTRUDE MILLARD.

(Filed 28 February, 1945.)

1. Trial § 22a/—

Tbe power of tbe Superior Court to grant an involuntary nonsuit is altogether statutory and did not exist prior to 1897, and therefore the requirement of the statute, now G. S., 1-183, must be strictly followed.

2. Same—

Where defendant fails to move for judgment as of nonsuit at the close of the plaintiff’s evidence, his motion therefor at the close of all the evidence cannot be granted, the right to demur to the evidence having been waived.

Appeal by plaintiff from Ruclisill, Special Judge, at September Term, 1944, of'Nash.

Action to recover damages alleged to bave been negligently caused in a collision between a Lafayette automobile driven by tbe plaintiff, H. M. Avent, and a Ford automobile of tbe male defendant, D. ~W. Millard, driven by tbe feme defendant, Gertrude Millard, in tbe city of Rocky Mount on 8 January, 1944. Tbe court entered judgment wherein it is recited “At tbe close of all tbe evidence tbe defendants and eacb of tbem lodged motion for judgment as of nonsuit. After a discussion said judgment as of nonsuit as to botb defendants is allowed.” An examination of record discloses tbat wben tbe plaintiff bad introduced bis evidence and rested bis case tbe defendants lodged no motion for dismissal or for judgment as in ease of nonsuit, but introduced their evidence, and after all tbe evidence on botb sides was in lodged motion for judgment as of nonsuit. Tbis motion was allowed, and judgment accordant therewith was entered. To tbis action of tbe court tbe plaintiff objected, excepted and appealed to tbe Supreme Court, assigning errors.

'Keel & Keel for plaintiff, appellant.

J. W. Grissom for defendants, appellees.

Per Curiam.

Tbe power of tbe Superior Court to grant an involuntary nonsuit is altogether statutory and did not exist prior to tbe passing of tbe statute in 1897 (Hinsdale Act), Riley v. Stone, 169 N. C., 421, 86 S. E., 348; and since tbe allowance of a motion for judgment as of nonsuit is thus based upon purely statutory grounds, tbe requirement of tbe statute, now G. S., 1-183, must be strictly followed. Therefore, where a defendant fails to move for a judgment as of nonsuit at tbe close of tbe plaintiff’s evidence, bis motion therefor at the close of all tbe evidence cannot be granted, as the right to demur to the evidence is waived. Jones v. Insurance Co., 210 N. C., 559, 187 S. E., 169.

Tbe defendants having failed to lodge their motion for dismissal of the action and for a judgment as in case of nonsuit when the plaintiff had introduced his evidence and rested his case, the granting of such a motion after all the evidence on both sides was in was unauthorized and error, for which the judgment ’below must be

Reversed.