Bradshaw v. Bank

• Decision Date: 31 December 1916
• Docket Number: (No. 505.)
• Citation: 90 S.E. 789
• Court: North Carolina Supreme Court
• Parties: BRADSHAW et al. v. CITIZENS' NAT. BANK et al.

(172 N.C. 632)

90 S.E. 789

BRADSHAW et al.

v.CITIZENS' NAT. BANK et al.

(No. 505.)

Supreme Court of North Carolina.

Dec. Term, 1916.

Appeal from Superior Court, Mitchell County; Shaw, Judge.

Action by Atlas Bradshaw and others against the Citizens' National Bank and others. Motion to dismiss action denied, and defendants except and appeal. Appeal dismissed.

The following facts were found by the judge:

"Prior to the 1st day of January, 1915, a suit between the same parties, plaintiffs and defendants, as those in this case was instituted in the superior court of Yancey county, and was not brought in forma pauperis, but the plaintiffs gave bond in that suit for the costs. The action in the superior court of Yancey county and this action were both brought for the identical relief by plaintiffs against defendants; that prior to the 1st day of March, 1915, the plaintiffs in the suit in Yancey county took a voluntary nonsuit; that on the 12th day of October, 1915, the plaintiffs in the suit in Yancey county brought this action in the superior court of Mitchell county against the parties who were defendant in that suit; that the costs of the suit in Yancey county were not paid before the commencement of this action, nor as late as the 11th day of April, 1916."

The court refused to dismiss the action, and defendants appealed.

Hudgins & Watson, of Marion, J. Bisray, of Burnsville, and A. Hall Johnston, of Asheville, for appellants.

S. J. Ervin, of Morganton, and Pless & Winborne, of Marion, for appellees.

WALKER, J. (after stating the facts as above). [1] The appeal was prematurely taken, or, to be more accurate, an appeal does not lie from the refusal of a motion to dismiss an action. The defendants should have noted their exception to the adverse ruling and proceeded with the trial, and at the final hearing the exception could be reserved to them and reviewed in this court by an appeal from the final judgment upon a proper assignment of error. This has been the uniform practice in such cases. We said in School Trustees v. Hinton, 156 N. C. 586, 71 S. E. 1087:

"This appeal is premature, and upon motion is dismissed. The exception should be noted, and when a final judgment is rendered, an appeal may be taken, citing Hendrick v. Railroad, 98 N. C. 431 ; Railroad v. Warren, 92 N. C. 620; Telegraph Co. v. Railroad, 83 N. C. 420."

And in Chadwick v. Railroad Co., 161 N. C. 210, 75 S. E. 852:

"We are of opinion that the motion to dismiss this appeal (from the clerk) because it is prema-ture should be allowed. It was the duty of the defendant to have noted every exception and let the cause proceed to the hearing under the statute, and then, if dissatisfied with the final result, upon exceptions properly taken, the cause could be heard in the superior court, and then by appeal to this court."

See, also, Crawley v. Woodfln, 78 N. C. 4; Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. Rep. 731; Clinard v. White, 129 N. C. 250, 39 S. E. 960; Jester v. Steam Packing Co., 131 N. C. 54, 42 S. E. 447; Johnson v. Reformers, 135 N. C. 385, 47 S. E. 463; Beck v. Bank, 157 N. C. 105, 72 S. E. 632.

Many cases upon the proposition that an appeal will not lie from the refusal of a motion to dismiss are collected in Clark's Code (3d Ed.) p. 738. The general question was fully considered at this term in Chambers v. Railway Co., 90 S. E. 590, with citation of authorities. If every ruling not decisive of the case could be brought to this court for review, by an immediate appeal, without waiting for the final judgment, litigation would be greatly prolonged and become almost interminable, costs would be enormously increased, and much valuable time would be wasted. The rule is not one that can safely be departed from, as to do so would encourage unnecessary appeals and in many cases result in a delay, and, perhaps, a denial of justice. Similar views to these were expressed in Pritchard v. Spring Company, 151 N. C. 249, 65 S. E. 968, and approved in Beck v. Bank, supra.

But we will consider the merits of the appeal, as has been done in other cases of a like kind. State v. Wylde, 110 N. C. 500, 15 S. E. 5; Clinard v. Wihite Company, 129 N. C. 250, 39 S. E. 960; Meekins v. Railroad Co., 131 N. C. 2, 42 S. E. 333.

The defendants' motion to dismiss was based on the ground that Revisal, § 370, was amended by Public Laws of 1915, c. 211, by adding a proviso thereto, and in its amended form reads as follows:

"If an action shall be commenced within the time prescribed therefor, and the plaintiff be nonsuited, or a judgment therein be reversed on appeal, or be arrested, the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit, reversal, or arrest of judgment: Provided, that the costs in such action shall have been paid by the plaintiff before the commencement of the new suit, unless said first suit shall have been brought in forma pauperis." Gregory's Revisal Biennial 1915, p. 354, § 370.

The contention necessarily is that by this section the bringing of a second action at all, after nonsuit in the first, is forbidden, except upon condition that the plaintiff, at the time of commencing the second, has paid all the costs of the first action, but this is, we think, too narrow a construction. A nonsuit did not prevent the bringing of a new action (14 Cyc. 393), as it decided nothing on the merits, and therefore did not operate as res judicata or as an estoppel.

"A nonsuit is in many instances of importance, because it gives the party the right to commence the same suit again, and alter its status by additional testimony, whereas, if he answers and hears the verdict, he must stand on the case, as then presented, and rely upon his exceptions and upon obtaining a reversal of the judgment on appeal." 14 Cyc. 393, note 8, citing Hall v. Schuchardt, 34 Md. 15.

Our doctrine is the same, a fresh action after nonsuit, for the same cause, being permitted, even when the first suit is dismissed for want of jurisdiction. Anonymous, 3 N. C. 231 (2 Hayw. 63); Pearse v. House, 3 N. C. 386; Skillington v....