Tussey v. Owen
| Decision Date | 15 April 1908 |
| Parties | TUSSEY et ux. v. OWEN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Justice, Judge.
Action by J. A. Tussey and wife against L. A. Owen, executor of Anderson Owen, deceased. From a judgment of dismissal as on nonsuit, plaintiffs appeal. Affirmed.
A nonsuit on the evidence is not a bar to another suit, and plaintiff may institute another suit within a year.
See 139 N.C. 457, 52 S.E. 128.
This action was brought to recover $2,000 for services rendered by the feme plaintiff to her father. She alleged that he had agreed to give her one-fourth of his estate in his will, if she would continue to live at his home and work for him. When the case was here at a former term we held that, upon her own evidence, she could not recover the contract price, as she had failed to show performance of the contract on her part or that she was prevented by her father from performing it. The defendant had moved to nonsuit the plaintiff, and this court further directed that the nonsuit should have been allowed, and the judge erred in refusing the motion. When the opinion and judgment of this court were certified to the superior court, the plaintiff, at April term, 1906, moved to amend the complaint so as to allege that the feme plaintiff had agreed to work for her father until his debts had been paid, and not until he died, if he would give her one-third of his property, and that she had performed her part of the contract. The defendant objected to this amendment, and excepted to the ruling of the court allowing the same, upon the ground that the court had no power to allow an amendment. To the amended complaint the defendant, at April term, 1906 filed a demurrer which, at August term, 1906, was sustained upon the ground that a new cause of action had been alleged. The plaintiffs were then allowed to further amend the complaint by alleging that the feme plaintiff quit the service of her father because of intolerable conditions existing at his home, was married, and went with her husband to live in Tennessee. The defendant demurred to this amended complaint. The demurrer was sustained at November term, 1906 so far as it covered the objections taken in the former demurrer, and in other respects it was overruled. The defendant excepted and answered the amended complaint. At November term, 1907, the court, upon an inspection and consideration of the record, dismissed the action as upon nonsuit; it appearing from the certificate of this court that a nonsuit had been ordered. The plaintiff excepted and appealed.
Walser & Walser and Watson, Buxton & Watson, for appellants.
E. E. Raper and W. H. Phillips, for appellee.
When this case was here before we declared that there was error and that the superior court should have entered a judgment of nonsuit against the plaintiff. The judgment of this court was duly certified to the court below, with directions to proceed further in the cause in accordance with the opinion by which the nonsuit had been ordered. The nonsuit was ordered, not upon the pleadings, but upon the evidence, under the provisions of the statute (Revisal 1905, § 539). It was in law equivalent to a reversal of the judgment below and a direction to dismiss the action. Hollingsworth v. Skelding, 142 N.C. 246, 55 S.E. 212; Bowden v. Railroad, 144 N.C. 28, 56 S.E. 558. It was, therefore, the duty of the superior court, when it received the certificate of this court, with the accompanying opinion, to dismiss the action in accordance with the mandate of the judgment delivered here. It had no power to proceed otherwise than as directed in that judgment, and especially did it not have the power to proceed in a manner inconsistent therewith. The cases to this effect are numerous. Calvert v. Peebles, 82 N.C. 334; Murrill v. Murrill, 90 N.C. 120; Brendle v. Herren, 97 N.C. 257, 2 S.E. 158; Pearson v. Carr, 97 N.C. 194, 1 S.E. 916; Dobson v. Simonton, 100 N.C. 56, 6 S.E. 369; Stephens v. Koonce, 106 N.C. 222, 10 S.E. 996; Herndon v. Insurance Co., 108 N.C. 648, 13 S.E. 188; Black v. Black, 111 N.C. 300, 16 S.E. 412. In McCall v. Webb, 126 N.C. 760, 36 S.E. 174, this court held that after final judgment in the Supreme Court it is too late to set up a new cause of action by amendment of the complaint, and in White v. Butcher, 97 N.C. 7, 2 S.E. 59, this court refused to permit any change in the pleadings for the purpose of introducing new matter into the case after it had...
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