Tillery v. Royal Benefit Society & Royal Fraternal Ass'n

80 S.E. 1068, 165 N.C. 262, 1914 N.C. LEXIS 257

• Court: Supreme Court of North Carolina
• Decided: March 11, 1914
• Status: Published

Opinion

AlleN, J.

A motion to dismiss for want of jurisdiction may be made for tbe first time in tbe Supreme Court (McDonald v. McArthur, 154 N. C., 122); but it is not tbe recovery which determines jurisdiction. It is tbe amount demanded in good faith (Brock v. Scott, 159 N. C., 516); and as it appears tbat tbe plaintiff demanded $202, and there is nothing in tbe record from which bad faith can be inferred, tbe motion to dismiss must be denied.

The first assignment of error is without merit. There was no request for a special instruction, and if one had been requested, covering the statements in the assignment, it could not have been given, because it would have required the judge to express an opinion upon a fact' — that the policy had been procured under a misrepresentation as to age — which he could not do, if there had been evidence to support it; but it also appears from-the record that the application for membership was not introduced, and that there was no evidence that the insured made any representation as to his age. ’

The other assignments are formal, and require no discussion.

No error.