Chandler v. . Mills

90 S.E. 299, 172 N.C. 366, 1916 N.C. LEXIS 307

• Court: Supreme Court of North Carolina
• Decided: November 1, 1916
• Status: Published

Opinion

Walker, J.,

after stating case: We need not inquire into the correctness of the ruling as to the effect of any negligence of J ames Hunter, as we are of the opinion that the nonsuit and appeal were prematurely taken. The law with respect to this matter has been thoroughly well settled by this Court. Before a plaintiff can resort to a nonsuit, and have any proposed ruling of the trial court reviewed here by appeal, the intimation of opinion by the judge must be of such a nature as to defeat a recovery. If there is any ground left upon which the plaintiff may succeed before the jury, after the elimination of all others by an adverse intimation, the remedy is not by,nonsuit and appeal, but the case should be tried out upon the remaining ground, for the plaintiff may recover full damages, in which ease no appeal by him would be necessary. In other words, the threatened ruling must exhaust every ground upon which a verdict could be had, and, therefore, be fatal to plaintiff’s recovery. Speaking to this peculiar but sometimes expedi tious practice o£ the courts, it was said in Hayes v. R. R., 140 N. C., 131, 134: “It is common practice for a plaintiff to submit to an involuntary nonsuit which he is driven or compelled to take, reserving leave to move afterwards to set the same aside, with a view not to abandon the prosecution of the, suit, but to further prosecute it by appeal, in order to test the correctness of a ruling of the court which may otherwise be fatal in his case; and the practice is a useful one when restricted within- its proper limits. Mobley v. Watts, 98 N. C., 284; Hickory v. R. R., 138 N. C., 311; Hedrick v. Pratt, 94 N. C., 101. In order to avoid appeals based upon trivial interlocutory decisions, the right thus to proceed 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 plaintiff. Plaintiff’s right to take the course he did was challenged in this Court, because the ruling did not coyer the whole ease, but left him ground upon which a recovery could be had.” To the same effect is Midgett v. Mfg. Co., 140 N. C., 361; Hoss v. Palmer, 150 N. C., 17, and Merrick v. Bedford, 141 N. C., 504. The Court said in Midgett’s case, supra: “An intimation of an opinion by the judge adverse to the plaintiff, upon some proposition of law which does not take the case from the jury, and which leaves open essential matters of fact still to be determined by them, will not justify the plaintiff in suffering a nonsuit and appealing. Such nonsuits are premature, and the appeals will be dismissed, ... If the plaintiff is permitted to take a nonsuit and appeal whenever an adverse .ruling is made during the trial, not necessarily fatal to the case, it is possible the same case may be brought to this Court for review repeatedly, and numerous and unnecessary trials had in the court below. It is best that the case he Tried out,’ and then, if an appeal is taken, all the alleged errors excepted to during the trial may be reviewed here,” citing Hayes v. R. R., supra; Tiddy v. Harris, 101 N. C., 591; Gregory v. Forbes, 94 N. C., 221, and Crawley v. Woodfin, 78 N. C., 4. The rule of practice itself has prevailed in our courts for many years, hut it has been strictly confined in its application to cases where the intimation of opinion reaches to the whole case and leaves nothing for the plaintiff to stand upon, so that the review of the ruling in this Court will extend to all essential matters upon which a recovery could be based; otherwise the appeal would be fragmentary, and we would be giving our opinion upon a single question of law not finally determinative of the case, and trials would thus be uselessly multiplied and protracted.

According to this established principle in the procedure of the courts, plaintiff submitted to a nonsuit -prematurely, and we must, therefore, dismiss his appeal. Merrick v. Bedford, supra.

Appeal dismissed.'