Warren v. Winfrey

94 S.E.2d 481, 244 N.C. 521, 1956 N.C. LEXIS 452

Opinion

Per Curiam.

“The power of the court to grant an involuntary non-suit is altogether statutory and must be exercised in accord with the statute, G.S. 1-183.” Ward v. Cruse, 234 N.C. 388, 67 S.E. 2d 257.

G.S. 1-183 provides that “when on trial of an issue of fact in a civil action . . ., the plaintiff has introduced his evidence and rested his case, the defendant may move ... for judgment as in case of nonsuit.”

The court had no power to nonsuit the case before plaintiff rested his case. For this error plaintiff is entitled to a new trial. In the state of the record the questions discussed in the briefs are not presented for decision.

Reversed.

Johnson, J., not sitting.