Hollingsworth GMC Trucks, Inc. v. Smith , 249 N.C. 764 ( 1959 )

107 S.E.2d 746 (1959) 249 N.C. 764

HOLLINGSWORTH GMC TRUCKS, INC., a North Carolina Corporation,
v.
Ralph Lamuel SMITH.

No. 247.

Supreme Court of North Carolina.

March 25, 1959.

Bell, Bradley, Gebhardt & DeLaney and Jones & Small, Charlotte, for plaintiff, appellant.

Fred H. Hasty and Richard M. Welling, Charlotte, for defendant, appellee.

MOORE, Justice.

The defendant in apt time moved to dismiss the appeal on the ground that it is fragmentary and the record contains no final judgment from which an appeal will lie.

Plaintiff contends that on a motion to nonsuit the sufficiency of the evidence to carry the counterclaim to the jury is a question of law and not a matter of discretion, and, once the motion has been allowed, an order setting aside the ruling is a final judgment on a question of law from which an appeal will lie.

In the first place, the effect of the Judge's order is the same as if the motion to nonsuit the counterclaim had been denied in the first instance. With respect to the counterclaim the plaintiff is defendant. The statute makes no provision for an immediate appeal from a denial of a motion to nonsuit. "Defendant * * * may make such motion at the conclusion of the evidence of both parties * * *. If the motion is refused and after the jury has rendered its verdict the defendant may on appeal urge as ground for reversal the trial court's denial of his motion * * *." G.S. § 1-183. Since the allowance of a motion for judgment as of nonsuit is based on purely statutory grounds, the provisions of the statute will be strictly followed. Avent v. Millard, 225 N.C. 40, 33 S.E.2d 123. No appeal lies from a refusal to dismiss an action. Johnson v. Pilot Life Insurance Co., 215 N.C. 120, 1 S.E.2d 381. The movant may note an exception, allow the case to proceed, and then, if dissatisfied with the final result, the matter may be considered on the appeal from the final judgment. Bradshaw v. Citizens' Nat. Bank, 172 N.C. 632, 90 S.E. 789.

"An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial." G.S. § 1-277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377.

It is insisted that if the order is permitted to stand in the instant case the plaintiff will lose a substantial legal right.

It is true that the question presented by a motion to nonsuit is one of law. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. The question of the sufficiency of the evidence to carry the case to the jury must be decided by the Judge before the verdict, and after the verdict the case may not be dismissed by way of nonsuit for insufficiency of the evidence. Temple v. Temple, 246 N.C. 334, 98 S.E.2d 314. In the instant case there was no verdict. The jury could not agree and a mistrial was declared.

"A judgment or order rendered by a judge of the Superior Court in the exercise of a discretionary power is not subject to review by appeal to the Supreme Court in any event, unless there has been an abuse of discretion on his part." Veazey v. Durham, supra. [231 N.C. 357, 57 S.E.2d 382.] A mere recital in an order that it is entered in the exercise of the court's discretion does not necessarily make the subject of the order a discretionary matter. Poovey v. City of Hickory, 210 N.C. 630, 188 S.E. 78. Rulings of the court on matters of law are as a rule not discretionary. McIntosh, North Carolina Practice and Procedure (Second Edition), Vol. 2, Sec. 1782(4), p. 209.

However, this Court has held that a motion for judgment as of nonsuit is in fieri until the rendition of a verdict. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822. In the Bruton case the court denied motions to nonsuit made at the close of plaintiff's evidence and at the close of all the evidence. During arguments to the jury the court allowed the motion. On appeal plaintiff contended that the Judge had no power to grant the motion after having refused to do so at the close of the evidence. The decision of this Court was in effect that the Judge might change his ruling at any time before the verdict was in.

Conceding that the order of Judge Froneberger setting aside his former ruling involved a question of law, still it did not affect a substantial right. A litigant has no right to require the judge to refrain from doing that which he has a right to do.

"A judgment is in fieri during the term at which it is rendered and the judge, non constat notice of appeal, may modify, amend, or set it aside at any time during the term. [Citing authorities.]" Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407, 408. "Until the expiration of the term the orders and judgments of the court are in fieri, and the judge has power, in his discretion, to make such changes and modifications in them as he may deem wise and appropriate for the administration of justice, * * *" State v. Godwin, 210 N.C. 447, 187 S.E. 560, 561.

A superior Court judge has little opportunity for prolonged deliberation upon many matters involving competency of evidence, legal principles and inferences of law which arise during a trial. He must, of necessity, make immediate rulings on the questions before him in order that trials may progress with reasonable celerity. To hold that he could not in the interest of justice change, modify or reverse a ruling during the progress of a trial and, in proper cases, during term, would be to require infallibility. As was said by one of the Justices when this case was argued in this Court, to hold a Superior Court judge to such a standard would be tantamount to placing him in a strait jacket.

The causes coming before the judge are in the bosom of the court during term time. So long as his orders, judgments and rulings do not fall within the classifications set out in G.S. § 1-277, no appeal therefrom will lie. The order in the case at bar is not appealable.

The instant case will stand upon the civil issues docket as though it had not been tried before Judge Froneberger and as though he had made no orders or rulings therein, so far as the retrial is concerned.

In the Supreme Court, for the first time, the plaintiff interposed a demurrer ore tenus to the defendant's counterclaim for personal injuries.

The Court may, in its discretion, on a fragmentary appeal, express an opinion upon the merits. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231. Or it may refuse to do so. Thomas v. Carteret County, 180 N.C. 109, 104 S.E. 75; Chambers v. Seaboard Air Line Railway Co., 172 N.C. 555, 90 S.E. 590. This Court will ordinarily refuse when a discussion of the merits would give a party a preview of the case before the trial. We have carefully read and considered the evidence and pleadings in this case and, in the exercise of the Court's discretion, we decline to pass upon the demurrer ore tenus. This, without prejudice.

Appeal dismissed.