Avent v. . Millard

Supreme Court of North Carolina

Avent v. . Millard

33 S.E.2d 123, 225 N.C. 40, 1945 N.C. LEXIS 245

CourtSupreme Court of North Carolina

DecidedFebruary 28, 1945

StatusPublished

Cited by1 cases

This text of 33 S.E.2d 123 (Avent v. . Millard) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avent v. . Millard, 33 S.E.2d 123, 225 N.C. 40, 1945 N.C. LEXIS 245 (N.C. 1945).

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Opinion

Per Curiam.

Tbe power of tbe Superior Court to grant an involuntary nonsuit is altogether statutory and did not exist prior to tbe passing of tbe statute in 1897 (Hinsdale Act), Riley v. Stone, 169 N. C., 421, 86 S. E., 348; and since tbe allowance of a motion for judgment as of nonsuit is thus based upon purely statutory grounds, tbe requirement of tbe statute, now G. S., 1-183, must be strictly followed. Therefore, where a defendant fails to move for a judgment as of nonsuit at tbe close of tbe plaintiff’s evidence, bis motion therefor at the close of all tbe *41 evidence cannot be granted, as the right to demur to the evidence is waived. Jones v. Insurance Co., 210 N. C., 559, 187 S. E., 169.

Tbe defendants having failed to lodge their motion for dismissal of the action and for a judgment as in case of nonsuit when the plaintiff had introduced his evidence and rested his case, the granting of such a motion after all the evidence on both sides was in was unauthorized and error, for which the judgment ’below must be

Reversed.

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Per Curiam.

Tbe power of tbe Superior Court to grant an involuntary nonsuit is altogether statutory and did not exist prior to tbe passing of tbe statute in 1897 (Hinsdale Act), Riley v. Stone, 169 N. C., 421, 86 S. E., 348; and since tbe allowance of a motion for judgment as of nonsuit is thus based upon purely statutory grounds, tbe requirement of tbe statute, now G. S., 1-183, must be strictly followed. Therefore, where a defendant fails to move for a judgment as of nonsuit at tbe close of tbe plaintiff’s evidence, bis motion therefor at the close of all tbe *41 evidence cannot be granted, as the right to demur to the evidence is waived. Jones v. Insurance Co., 210 N. C., 559, 187 S. E., 169.

Tbe defendants having failed to lodge their motion for dismissal of the action and for a judgment as in case of nonsuit when the plaintiff had introduced his evidence and rested his case, the granting of such a motion after all the evidence on both sides was in was unauthorized and error, for which the judgment ’below must be

Reversed.

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Bluebook (online)

33 S.E.2d 123, 225 N.C. 40, 1945 N.C. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avent-v-millard-nc-1945.

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