Jones v. Dixie Fire Insurance

Schenck, J. The assignments of error present two questions: First: Did the court err in setting aside the verdict ? Second: Did the court err in allowing defendant’s motion for judgment as in case of nonsuit? The first question must he answered in the negative. The record does not state whether the verdict was set aside as a matter of law or as a matter of discretion. However, since no facts are found, and no reasons are given, it is presumed that the verdict was set aside in the exercise of the discretionary power vested in the trial judge; Bird v. Bradburn, 131 N. C., 488; Braid v. Lukins, 95 N. C., 123, and the exercise of this *561 discretionary power is not reviewable upon appeal. Hoke v. Whisnant, 174 N. C., 658. The second question must be answered in the affirmative. The record discloses that no motion for judgment as in case of nonsuit was lodged “when the plaintiff introduced his evidence and rested his case,” but was lodged for the first time “after all the evidence on both sides is (was) in.” The defendant thereby lost his right under 0. S., 567, to demur to the evidence. “The motion (for judgment as in case of nonsuit) cannot primarily come at the close of all the evidence. It must be made initially at the close of the plaintiffs’ evidence, and, if the motion is refused, there may be an exception and appeal. But if evidence is offered by defendant, the exception is waived. At the- end of all the evidence the exception may be renewed, but not then made for the first time.” Nowell v. Basnight, 185 N. C., 142 (147), and cases there cited. Even if the defendant bad properly lodged its motion for judgment as in case of nonsuit when the plaintiff bad introduced his evidence and rested his ease, and bad properly renewed it after all the evidence of both sides was in, still the court was without authority to allow the motion after the verdict; Riley v. Stone, 169 N. C., 421, and this is not affected by the reservation by the court of his ruling on the motion. Batson v. Laundry, 202 N. C., 560. See, also, N. C. Practice & Procedure (McIntosh), par. 565 (3), at pp. 613-14. The judgment entered below is reversed and the case remanded for a New trial.