Mewborn v. . Smith

ClakksoN, 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., at p. 577, 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 *534 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., ante, at p. 42, it is said: “At the close of 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 conclusive? It should he 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. On page 424, it is said: ‘The motion to dismiss because there is not sufficient evidence to submit the ease 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; Lee v. Penland, ante, 340. In Nowell v. Basnight, 185 N. C., at p. 147, we find: “The following may be considered as fairly interpretative of C. S., 567: ‘Change of practice. This section changes the practice in demurrers to the evi; denee: 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: Parlier v. R. R., 129 N. C., 262; 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, S. v. Hagan, 131 N. C., 803; but may now, under section 4643. Time of making motion. It must be made first at the close of plaintiff’s evidence, and before defendant introduces any evidence: Smith v. Pritchard, 173 N. C., 720; McKellar v. McKay, 156 N. C., 283; Boddie v. Bond, 154 N. C., 359. It is not *535 allowed after verdict, Vaughan v. Davenport, 159 N. C., 369; nor after verdict set aside, Riley v. Stone, 169 N. C., 421; nor after judgment by default and inquiry, Mason v. Stephens, 168 N. C., 370.’ ” In Price v. Insurance Co., ante, at p. 428, it is said:' “In tbe interpretation of tbe statute tbis Court bas beld tbat tbe trial judge bas no power to grant tbe defendant’s motion to dismiss tbe action for insufficient evidence as a matter of law after tbe verdict bas been returned. Godfrey v. Coach Co., ante, 41. ‘Tbe judge bas no power to extend tbe time by amending tbe statute so as to permit tbe motion to be made . . . after verdict.’’ Riley v. Stone, 169 N. C., 421. After verdict be is remitted, on tbis point, to tbe exercise of bis discretion. Lee v. Penland, ante, 340. While a motion to dismiss for insufficient evidence must be disposed of before a verdict in tbe way tbe statute prescribes, a motion to set aside a verdict or judgment may be entertained for other errors of law committed during tbe trial, such, for example, as error in tbe admission or rejection of evidence or in tbe charge of tbe court to tbe jury.” Upon tbe record in tbis action and by analogy to tbe above authorities, tbe court below was remitted to its discretion, apparently tbis has not been exercised. Error.