Hollingsworth GMC Trucks, Inc. v. Smith

• Decision Date: 25 March 1959
• Docket Number: No. 247,247
• Court: North Carolina Supreme Court
• Parties: HOLLINGSWORTH GMC TRUCKS, INC., a North Carolina Corporation, v. Ralph Lamuel SMITH.

Page 746

107 S.E.2d 746

249 N.C. 764

HOLLINGSWORTH GMC TRUCKS, INC., a North Carolina Corporation, v. Ralph Lamuel SMITH.

No. 247

Supreme Court of North Carolina.

March 25, 1959

Bell, Bradley, Gebhardt & DeLaney and Jones & Small, Charlotte, for plaintiff, appellant.

Fred H. Hasty and Richard M. Welling, Charlotte, for defendant, appellee.

MOORE, Justice.

The defendant in apt time moved to dismiss the appeal on the ground that it is fragmentary and the record contains no final judgment from which an appeal will lie.

Plaintiff contends that on a motion to nonsuit the sufficiency of the evidence to carry the counterclaim to the jury is a question of law and not a matter of discretion, and, once the motion has been allowed, an order setting aside the ruling is a final judgment on a question of law from which an appeal will lie.

In the first place, the effect of the Judge's order is the same as if the motion to nonsuit the counterclaim had been denied in the first instance. With respect to the counterclaim the plaintiff is defendant. The statute makes no provision for an immediate appeal from a denial of a motion to nonsuit. 'Defendant * * * may make such motion at the conclusion of the evidence of both parties * * *. If the motion is refused and after the jury has rendered its verdict the defendant may on appeal urge as ground for reversal the trial court's denial of his motion * * *.' G.S. § 1-183. Since the allowance of a motion for judgment as of nonsuit is based on purely statutory grounds, the provisions of the statute will be strictly followed. Avent v. Millard, 225 N.C. 40, 33 S.E.2d 123. No appeal lies from a refusal to dismiss an action. Johnson v. Pilot Life Insurance Co., 215 N.C. 120, 1 S.E.2d 381. The movant may note an exception, allow the case to proceed, and then, if dissatisfied with the final result, the matter may be considered on the appeal from the final judgment. Bradshaw v. Citizens' Nat. Bank, 172 N.C. 632, 90 S.E. 789.

'An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.' G.S. § 1-277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377.

It is insisted that if the order is permitted to stand in the instant case the plaintiff will lose a substantial legal right.

It is true that the question presented by a motion to nonsuit is one of law. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. The question of the sufficiency of the evidence to carry the case to the jury must be decided by the Judge before the verdict, and after the verdict the case may not be dismissed by way of nonsuit for insufficiency of the evidence. Temple v. Temple, 246 N.C. 334, 98 S.E.2d 314. In the instant case there was no verdict. The jury could not agree and a mistrial was declared.

'A judgment or order rendered by a judge of the Superior Court in the exercise of a discretionary power is not subject to review by appeal to the Supreme Court in any event, unless there has been an abuse of discretion on his part.' Veazey v. Durham, supra. [231 N.C. 357, 57 S.E.2d 382.] A mere recital in an order that it is entered in the exercise of the court's discretion does not necessarily make the subject of the order a discretionary matter. Poovey v. City of Hickory, 210 N.C. 630, 188 S.E. 78. Rulings of the court on matters of law are as a rule not discretionary. McIntosh, North Carolina Practice and Procedure (Second Edition), Vo1. 2, Sec. 1782(4), p. 209.

However, this Court has held that a motion for judgment as of nonsuit is in fieri until the rendition of a verdict. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822. In the Bruton case the court denied motions to nonsuit made at the close of plaintiff's evidence and at the close of all the evidence. During arguments to the jury the court allowed the motion. On appeal plaintiff contended that the Judge had no power to grant the motion after having refused to do so at the close of the evidence. The decision of this Court was in effect that the Judge might change his ruling at any time before the verdict was in.

Conceding that the order of Judge Froneberger setting aside his former ruling involved a question of law, still it did not affect a substantial right. A litigant has no right to require the...