McKinney v. Dill

• Decision Date: 25 February 1948
• Docket Number: 89
• Citation: 46 S.E.2d 313,228 N.C. 539
• Parties: McKINNEY v. DILL et ux.
• Court: North Carolina Supreme Court

46 S.E.2d 313

228 N.C. 539

McKINNEY v. DILL et ux.

No. 89

Supreme Court of North Carolina

February 25, 1948

Carl R. Stuart, of Marshall, for plaintiff.

J. M. Bailey, Jr., of Marshall, for defendants.

PER CURIAM.

At the close of plaintiff's evidence the defendants moved for judgment of nonsuit. The trial judge, without ruling on the motion, expressed the view that the plaintiff's evidence did not in some respects correspond with her complaint, and in his discretion and ex mero motu withdrew a juror and ordered a mistrial, with permission to the plaintiff to amend her complaint. The defendants appealed, for that the court failed to rule on their motion to nonsuit, and plaintiff likewise appealed on account of the statement by the court that the plaintiff's complaint needed amendment to conform to the proof.

It is apparent that both appeals are premature, and must be dismissed. No judgment or final order, or order affecting a substantial right, has been entered below, and the cause remains on the docket of the Superior Court of Madison for such proceedings as may seem advisable to the parties. Johnson v. Pilot Life Ins. Co., 215 N.C. 120, 1 S.E.2d 381. See also Ten' Broeck v. Orchard, 79 N.C. 518.

The defendants' demurrer ore tenus, interposed for the first time in this Court, is not presently presented.

Plaintiff's appeal: Dismissed.

Defendants' appeal: Dismissed.