Ward v. Cruse

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67 S.E.2d 257 (1951)

234 N.C. 388

WARD et al. v. CRUSE et al.

No. 378.

Supreme Court of North Carolina.

October 31, 1951.

Ottway Burton, Asheboro, for plaintiff-appellant.

H. M. Robins, Asheboro, for defendants-appellees.

BARNHILL, Justice.

The trial judge set aside the verdict in the exercise of her sound discretion. Her action in so doing is not reviewable. Riley v. Stone, 169 N.C. 421, 86 S.E. 348; Jones v. Dixie Fire Insurance Co., 210 N.C. 559, 187 S.E. 769; State v. Caper, 215 N.C. 670, 2 S.E.2d 864.

The decisive question is this: Did the court below have authority to allow the motion to nonsuit and dismiss the action after the jury had rendered its verdict? This *258 Court has consistently held to the negative view.

As stated, a trial judge may set aside a verdict in his discretion. He may set it aside as a matter of law for errors committed during the trial, and from this order the aggrieved party may appeal. Culbreth v. Borden Mfg. Co., 189 N.C. 208, 126 S.E. 419; Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518.

But it is settled law in this State that a trial judge may dismiss an action after verdict rendered only on two grounds: (1) want of jurisdiction, or (2) failure of the complaint to state a cause of action. Riley v. Stone, supra; Jernigan v. Neighbors, 195 N.C. 231, 141 S.E. 586; Godfrey v. Queen City Coach Co., 200 N.C. 41, 156 S.E. 139.

When the issuable facts are settled by the verdict of the jury, the rights of the parties are thereby fixed and determined and the successful litigant is entitled to judgment on the verdict, subject only to (1) the right of the presiding judge to set aside the verdict, or to dismiss the action for want of jurisdiction or for failure of the complaint to state a cause of action, and (2) the right of the aggrieved litigant to appeal.

This rule applies to and forbids dismissal of the action by judgment as in case of nonsuit, after verdict, for insufficiency of the evidence. Dickey v. Johnson, 35 N.C. 450; Riley v. Stone, supra; Vaughan & Barnes v. Davenport, 159 N.C. 369, 74 S.E. 967; Nowell v. Basnight, 185 N.C. 142, 116 S.E. 87; Jernigan v. Neighbors, supra; Price v. Life & Casualty Insurance Co., 201 N.C. 376, 160 S.E. 367; Godfrey v. Queen City Coach Co., supra; Batson v. City Laundry Co., 202 N.C. 560, 163 S.E. 600; Jones v. Dixie Fire Insurance Co., supra; Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822.

The power of the court to grant an involuntary nonsuit is altogether statutory and must be exercised in accord with the statute. G.S. ยง 1-183. Riley v. Stone, supra. While the motion is in fieri until verdict is rendered, Bruton v. Carolina Power & Light Co., supra, the ruling on the motion may not be reversed, Price v. Life & Casualty Insurance Co., supra, or entered for the first time, Jernigan v. Neighbors, supra; Batson v. City Laundry Co., supra, after the issuable facts are determined by the jury.

Of course, the question here presented involves a matter of adjective law, and the Court, in the beginning, might have adopted the procedure followed by the court below. It did not elect to do so. Each course has its merits. Both are subject to criticism. The writer has been among those who have looked with some disfavor on the prevailing rule. Even so, everything considered, it is the wiser rule. In any event, certainty in the law is much to be desired. For that reason, the Court should not depart from a long-established rule save for clearly impelling reasons. Certainly it should not do so when the prevailing rule is as sound and free from objectionable features as the alternate or proposed rule.

If the motion to nonsuit had been duly overruled and this Court, on defendants' appeal, had reversed, the cause would have been dismissed. Had this Court sustained the court below, the verdict and judgment would have stood. In either event, the litigation would have terminated.

Here the plaintiff can gain nothing that was not assured him had the prevailing rule been followed. Even if we entertained a contrary view on the merits of the motion to nonsuit and reversed on that ground, the verdict has been set aside and so the plaintiff would still be put to a new trial.

The judgment of nonsuit will be vacated and the cause restored to the civil issue docket for trial. At the rehearing the trial judge will be free to enter judgment as in case of nonsuit if he deems it proper so to do, unrestricted by anything said in this opinion.


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