Bailey v. . Barnes

124 S.E. 742, 188 N.C. 378, 1924 N.C. LEXIS 78

Opinion

Stacy, J.

The appeal must be dismissed on authority of Chandler v. Mills, 172 N. C., 366.

Before a plaintiff can resort to a nonsuit and have any proposed ruling of the trial court reviewed on appeal, the intimation of opinion must go to tbe whole case and be of such a nature as to defeat a recovery. Robinson v. Daughtry, 171 N. C., 200.

“In order to avoid appeals based upon trivial interlocutory decisions, tbe right thus to proceed (suffer a nonsuit and appeal) has been said to apply ordinarily only to cases where the ruling of the court strikes at the root of the case and precludes a recovery by the plaintiff.” Walker, J., in Hayes v. R. R., 140 N. C., 131.

“The adverse intimation should be of such a kind that it is fatal to the case of the party against whom it is made. It must be directed against the right to recover at all, leaving no chance, in law, for him to succeed before the jury.” McKinney v. Patterson, 174 N. C., 483.

Plaintiff should have noted his exception and proceeded with his case. He submitted to a nonsuit prematurely; and, under the established rule of procedure, we must dismiss his appeal. Merrick v. Bedford, 141 N. C., 504.

Appeal dismissed.