Mewborn v. Smith

• Citation: 157 S.E. 795
• Decision Date: 01 April 1931
• Docket Number: No. 203.,203.
• Court: North Carolina Supreme Court
• Parties: MEWBORN. v. SMITH et al.

157 S.E. 795

(200 N.C. 532)

MEWBORN.

v.SMITH et al.

No. 203.

Supreme Court of North Carolina.

April 1, 1931.

Appeal from Superior Court, Lenoir County; Midyette, Judge.

Action by T. W. Mewborn, trading as T. W. Mewborn & Company, against A. E. Smith and Mettie F. Smith. Judgment for plaintiff, and defendant Mettie F. Smith appeals.

Error.

This is an action brought by plaintiff against defendants to recover the sum of $754.76 and interest on same from March 29, 1921, due on note (bond) under seal secured by mortgage.

The defendant A. E. Smith made no defense. The defendant Mettie E. Smith set up the plea that the execution of the bond and mortgage were procured by fraud on her. This was denied by plaintiff. The case was first heard in the municipal and county court, and it was adjudged by the proceeding in that court that the signature of Mettie F. Smith was not procured by fraud. She appealed to the superior court. The issue submitted to the jury in the superior court, and their answer thereto, were as follows: "Was the execution of the note by Mettie P. Smith procured by false and fraudulent representation, as alleged in the answer? Ans. Yes."

Upon the coming in of the verdict, the plaintiff moved the court to set same aside as a matter of right; motion allowed, and the defendant Mettie F. Smith excepted. Defendant Mettie F. Smith made motion for judgment on the verdict; motion denied; defendant Mettie F. Smith excepted. Judgment signed as appears in the record, and from the judgment Mettie F. Smith excepted. Appeal was duly made to the Supreme Court assigning errors on the exceptions above set forth.

Shaw & Jones, of Kinston, for appellant.

Rouse & Rouse, of Kinston, for appellee.

CLARKSON, J.

The defendant Mettie F. Smith, having admitted the execution of the note (bond) under seal and mortgage, was required to produce evidence upon her allegation of fraud.

In Montgomery v. Lewis, 187 N. C. 577, 122 S. E. 374, 376, we find: "But when the relief demanded was that the deed should be declared void because it was procured by fraud or undue influence, or because it was executed with intent to hinder, delay, or defeat creditors, the decisions have held uniformly that a preponderance of evidence was sufficient to establish the material allegations."

The record discloses that, at the close of defendant's evidence, plaintiff moved for directed verdict in favor of plaintiff; denied; plaintiff excepted. At the close of all the evidence plaintiff renewed motion for directed verdict; motion denied; plaintiff excepted.

The court below denied these motions of plaintiff, and the jury, on sufficient evidence, rendered a verdict in favor of defendant. There are no valid reasons in the findings of the court below for setting aside the verdict. The reasons assigned are insufficient in law.

In Godfrey v. Coach Co., 200 N. C. at page 42, 156 S. E. 139, it is said: "At the close of the plaintiff's evidence the defendant demurred and moved for judgment as of nonsuit and renewed its motion at the conclusion of all the evidence. Each motion was denied, and in each instance the defendant excepted. By refusing to dismiss the action the trial court adjudged that the evidence was of such probative character as to require the jury's answer to appropriate Issues. Having in this way twice adjudged the sufficiency of the evidence, should not the court have regarded its judgment on this point as conclusive? It should be noted that as now enforced the right to demur to the evidence in a cause is conferred by statute. The immediate question, which relates to the scope of the statute and the function of the trial court, was considered and determined in Riley v. Stone, 169 N. C. 421, 86 S. E. 348. On page 424 of 169 N. C, 86 S. E. 348, 349, it is said: 'The motion to dismiss because there is not sufficient evidence to submit the case to the jury, when made under the former practice, cut off the further introduction of evidence. The statute extended the time for a renewal of the motion to the close of all the evidence. The judge had no power to extend it by amending the statute so as to permit the motion to be made a third time under the guise of "renewed the motion" after verdict His decision, twice made, that there was evidence to go to the jury, was final upon that point, subject to exception made and entered at the time.'" Vaughan v. Davenport, 159 N. C. 369, 74 S. E. 967; Lee v. Penland, 200 N. C. 340, 157 S. E. 31.

In Nowell v. Basnlght, 185 N. C. at page 147, 116 S. E. 87, 89, we find: "The following may be considered as fairly interpretative of Consol. St. § 567: 'Change of Practice. This section changes the practice in demurrers to the evidence. Riley v. Stone, 169 N. C. 421 ; Prevatt v. Harrelson, 132 N. C. 252 ; Means v. R. R., 126 N. C. 424 . Under the act of 1897, prior to act of 1899. Parller v. R. R., 129 N. C. 262 139 S. E. 9611: Purnell v. R. R., 122 N. C. 832 ; Worth v. Ferguson, 122 N. C. 381 ; Wood v. Bartholomew, 122 N. C. 177 . It does not apply to a defense. Lester v. Harward, 173 N. C. 83 . But may apply to a counterclaim. Tarault v. Seip, 158 N. C. 363 . Held not to apply to criminal action. State v. Hagan...