Baxter v. Irvin

• Decision Date: 28 February 1912
• Citation: 158 N.C. 277,73 S.E. 882
• Parties: BAXTER. v. IRVIN.
• Court: North Carolina Supreme Court

73 S.E. 882

(158 N.C. 277)

BAXTER.

v.IRVIN.

Supreme Court of North Carolina.

Feb. 28, 1912.

1. Judgment (§ 199^*)—Judgment Non Obstante Veredicto.

A motion for judgment non obstante veredicto will not be allowed, unless it appears from the plea and the verdict, and not from the evidence, that the plaintiff is entitled to the judgment.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*]

2. Justices or the Peace (§ 188*)—Appeal— Trial De Novo—Judgment Non Obstante.

In an action in a justice's court, plaintiff's claim was for rent of space in a storeroom, and defendant "denied the indebtedness, and alleged a breach of the contract by way of defense." In the superior court on appeal, after verdict for defendant, plaintiff moved for judgment notwithstanding the verdict. Held, that the motion was properly denied; the answer being not a plea in confession and avoidance, and not to be so construed, though in justice's court, but merely equivalent to the general issue.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 188.*]

Appeal from Superior Court, Craven County; H. W. Whedbee, Judge.

Action by J. J. Baxter against Mrs. B. A. Irvin. From a judgment for defendant, plaintiff appeals. Affirmed.

R. A. Nunn, for appellant.

D. E. Henderson and A. D. Ward, for appellee.

WALKER, J. This action was brought in the court of a justice of the peace of Craven county to recover the sum of $100, with interest from July 31, 1910, and the plaintiff complained in that court that it was due by contract for the rent of space in a storeroom. The defendant "denied the indebtedness, and alleged a breach of the contract by way of defense." The plaintiff recovered in the justice's court, and defendant appealed to the superior court, where there was a trial by jury. Both parties introduced evidence, and the jury returned a verdict for the defendant. Plaintiff thereupon moved for judgment non obstante veredicto. The charge of the court is not in the record, and it appears that no exceptions were taken during the course of the trial, before the verdict was rendered. The court overruled the motion for judgment, and the plaintiff appealed to this court from a judgment for defendant.

We think the ruling of his honor was correct. At common law a judgment non obstante veredicto would be allowed only when the plea confessed a cause of action and set up matters in avoidance which were insufficient, although found true, to constitute either a defense or a bar to the action. Moye v. Petway, 76 N. C. 327; Ward v. Phillips, 89 N. C. 215; Walker v. Scott, 106 N. C. 56, 11 S. E. 364; Riddle v. Germanton, 117 N. C. 388, 23 S. E. 332. It was said in Moye v. Petway, supra, that the motion for such a judgment must, of course, be made after verdict, and the practice in such cases is very restricted. The motion will not be granted, unless it appears from the plea and the verdict, and not from the evidence, that the plaintiff is entitled to the judgment. Before the verdict, the plaintiff could sign judgment as on "nil dicit, " or as if there had been no plea or defense, treating the plea, or now the answer, as a sham one, and even if he traversed the matter relied on in avoidance, and the issue was found against him, he was still allowed to take judgment notwithstanding the verdict; the practice having been adopted to discourage sham pleas and defenses. No such case is presented in this record. The plaintiff alleged that the defendant is indebted to him for rent in the sum of $100, and the defendant simply denied the allegation, and alleged a breach of the contract as a bar to the action. This was not a plea by confession and avoidance; for it was tantamount to the general issue, or a direct traverse of the plaintiff's allegation. If there is no evidence to establish the plaintiff's case, the defendant should either demur to the evidence, or request the court to charge the jury that there is no evidence, and that therefore they should answer the issue in favor of the defendant, and likewise, if there is no evidence to establish the defense, the plaintiff should request the court to give a similar charge in his favor: but this must be done before verdict, and, as said by Chief Justice Pearson, in Moye v. Petway, supra, this practice "has not the slightest bearing upon a motion for judgment non obstante veredicto, which is made by the plaintiff, after verdict, for insufficiency of the defendant's matter in avoidance. There are no two matters of practice more entirely different in all respects." In addition to this, it is familiar learning that any defect or insufficiency in the evidence must be called to the attention of the court, by a prayer for instructions, before verdict, so that cases may be tried on their true...