Merrick v. Stevens

• Decision Date: 22 May 1906
• Citation: 141 N.C. 504,54 S.E. 415
• Court: North Carolina Supreme Court
• Parties: MERRICK. v. BEDFORD & STEVENS.

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, premature, improvidently taken, and that, under our decisions, an appeal from a nonsuit under such circumstances will not lie. Hayes v. Railroad, 140 N. C. 131, 52 S. E. 416; Tiddy v. Harris, 101 N. C. 591, 8 S. E. 227. In the latter case Chief Justice Smith, a lawyer andjudge of long experience under both systems of practice, states the ruling governing the right to appeal when a nonsuit is taken, as follows: "The practice has long prevailed that, when the proofs are all in and the judge intimates an opinion that under the old practice the plaintiff cannot recover, or under the new fails to establish the issues necessary to his having judgment, he may suffer a nonsuit and by appeal have the correctness of the ruling reviewed."

This rule, which has long prevailed, has been approved recently by this court in Hayes v. Railroad, supra, and Midgett, v. Manufacturing Co. (at this term) 53 S. E. 178. To the same effect are Gregory v. Forbes, 94 N. C. 221 and Crawley v. Woodfin, 78 N. C. 4. in Hayes'...