Merrick v. Stevens
| Citation | 141 N.C. 504, 54 S.E. 415 |
| Case Date | May 22, 1906 |
| Court | United States State Supreme Court of North Carolina |
54 S.E. 415
141 N.C. 504
MERRICK.
v.
BEDFORD & STEVENS.
Supreme Court of North Carolina.
May 22, 1906.
Appeal—Voluntary and Premature Nonsuit.
Where a ruling adverse to plaintiff related solely to the issue of damages, and not to the cause of action, and under such ruling plaintiff would have recovered some damages, much more than nominal, a nonsuit taken by him at the conclusion of the evidence and before the same closed was voluntary and premature, and an appeal therefrom would not lie.
[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 719.]
Appeal from Superior Court, Buncombe County; W. R. Allen, Judge.
Action by W. K. Merrick against Bedford & Stevens. From a judgment of nonsuit, plaintiff appeals. Appeal dismissed.
Locke Craig and Jones & Jones, for appellant.
Merrimon & Merrimon, for appellee.
BROWN, J. The following is taken from the official record in this case: "At the conclusion of the evidence, and before the evidence closed, the plaintiff's counsel announced that the plaintiff would take a nonsuit. Judgment of nonsuit is entered, and the plaintiff is taxed with the costs. No adverse ruling to the plaintiff was made after the motion of the defendant to nonsuit was overruled, and the court held that the plaintiff was entitled to have his case submitted to the jury, but disagreed with the plaintiff's counsel as to the measure of damages. On the next day, after the jury was discharged in the case, the plaintiff gave notice of appeal in open court." It appears also in the record that at the close of the plaintiff's evidence the defendant had moved to nonsuit the plaintiff, which motion was denied. The defendant was engaged in introducing evidence, and had not concluded when the plaintiff took the nonsuit. At the time the nonsuit was taken, no reasons were given, and the plaintiff did not state that it was taken in consequence of any adverse ruling. We think, furthermore, that according to the plaintiff's brief and argument the adverse ruling complained of related solely to the issue of damages, and not to the cause of action, upon the establishment of which the right to recover damages depends. Under the ruling the plaintiff would have recovered some damages, much more than noninal. Under the decisions of this court the plaintiff should have continued the trial, and by noting exceptions properly he would have been able to have this court review every ruling made in the court below. We think the nonsuit was voluntary,...
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Headman v. Board of Com'rs of Brunswick, 282.
...plaintiff's recovery"'--citing Hayes v. Railroad, 140 N.C. 131, 52 S.E. 416; Hoss v. Palmer, 150 N.C. 12, 63 S.E. 171; Merrick v. Bedford, 141 N.C. 504, 54 S.E. 415; Midgett v. Mfg. Co., 140 N.C. 361, 53 S.E. 178. It may well be said here, in illustration of the rule, and as showing its pra......
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Headman v. Bd. Of Com'rs Of Brunswick, (No. 282.)
...recovery' "—citing Hayes v. Railroad, 140 N. C. 131, 52 S. E. 416; Hoss v. Palmer, 150 N. C. 12, 63 S. E. 171; Merrick v. Bedford, 141 N. C. 504, 54 S. E. 415; Midgett v. Mfg. Co., 140 N. C. 361, 53 S. E. 178. It may well be said here, in illustration of the rule, and as showing its practic......
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Chambers v. Seabd. Air Line Ry. Co, (No. 419.)
...recovery"—citing Hayes v. Railroad Co., 140 N. C. 131, 52 S. E. 416; Hoss v. Palmer, 150 N. C. 12, 63 S. E. 171; Merrick v. Bedford, 141 N. C. 504, 54 S. E. 415; and Midgett v. Manufacturing Co., 140 N. C. 361, 53 S. E. 178, where the court held: "An intimation of an opinion by the judge ad......
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Allen v. Atlanta & Charlotte Air Line Ry. Co., 16306.
...It is succinctly set forth in Hoss v. Palmer, 150 N.C. 17, 63 S.E. 171, 172, as follows: 'This case is governed by Merrick v. Bedford, 141 N.C. 504, 54 S.E. 415, as will appear by the following language of the court in that case: 'We think, furthermore, that, according to plaintiff's brief ......