BAILEY v. BARNES, N.C., Judgment, Law, casemine.com

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Attorney(S)

Donald McRackan and R. A. Miller for plaintiff. Tucker Proctor, and Schulken, Toon Schulken for defendant.

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Smart Summary

Factual and Procedural Background

Civil action to recover proceeds from sale of a crop of strawberries on which plaintiff claimed a lien and chattel mortgage. The agreement in question purported to secure advances totaling $1,610: $1,275.31 for back accounts of previous years, $267.75 advanced under the paper, and only $198 advanced after or at the time of its execution. At trial the judge intimated he would treat the paper as simply an agricultural lien for advances and limit the plaintiff's recovery to $198. The plaintiff submitted to a nonsuit and appealed. This is an appeal by the plaintiff from the trial court (Calvert, J.), May Term, 1924, Columbus County.

Legal Issues Presented

Whether an appeal taken after the plaintiff submits to a nonsuit in response to the trial judge's intimation that the plaintiff cannot recover part of his demand is premature and subject to dismissal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandler v. Mills, 172 N.C. 366	Authority cited for dismissing the appeal.	The court invoked this case as the controlling authority to dismiss the appeal.
Robinson v. Daughtry, 171 N.C. 200	"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 the whole case and be of such a nature as to defeat a recovery."	Used to state the requirement that an adverse intimation must address the whole case and defeat recovery before a nonsuit-and-appeal is permissible.
Hayes v. R. R., 140 N.C. 131	"In order to avoid appeals based upon trivial interlocutory decisions, the 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."	Cited to limit the availability of nonsuit-and-appeal to rulings that strike at the root of the plaintiff's case.
McKinney v. Patterson, 174 N.C. 483	"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."	Relied on to emphasize that an adverse intimation must be fatal to the plaintiff's case, leaving no legal chance to succeed, before a nonsuit-and-appeal is proper.
Merrick v. Bedford, 141 N.C. 504	Support for the procedural rule that the plaintiff should note his exception and proceed with the case rather than prematurely submitting to a nonsuit.	Applied to conclude that the plaintiff submitted to a nonsuit prematurely and therefore the appeal must be dismissed.

Court's Reasoning and Analysis

The court began by stating the factual posture: the dispute over proceeds and the advances secured by the paper, with only $198 advanced at or after execution. The trial judge intimated he would construe the paper as an agricultural lien and limit recovery to $198. Citing Chandler v. Mills, the court held the appeal must be dismissed. The court explained the governing procedural principle (citing Robinson v. Daughtry): a plaintiff may not resort to a nonsuit and appeal from a tentative ruling unless the adverse intimation goes to the whole case and is of such a nature as to defeat recovery. Quoting Hayes and McKinney, the court reiterated that the exception permitting nonsuit-and-appeal applies ordinarily only when the ruling strikes at the root of the case and is fatal to any right to recover. Because the plaintiff instead should have noted his exception and proceeded with the case (citing Merrick v. Bedford), the court concluded the nonsuit was premature and dismissed the appeal.

Holding and Implications

Appeal dismissed.

Direct effect: the plaintiff's appeal is dismissed; the plaintiff should proceed to final judgment in the trial court and may appeal after final judgment under his exception if the outcome remains adverse. The decision applies established procedural rules regarding premature nonsuits and does not announce a new procedural doctrine beyond the authorities cited.

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ELROY BAILEY v. J. W. BARNES.

Appeal and Error — Fragmentary Appeals — Judgments.

An appeal from the intimation of the trial judge that upon the evidence the plaintiff could not recover a part of his demand is premature, and will be dismissed in the Supreme Court, the course to be pursued in such instances is to proceed to final judgment and then appeal under plaintiff's exception should the matter still be adverse to him.

Civil action to recover the proceeds derived from a sale of a crop of strawberries upon which plaintiff claimed to hold a lien and chattel mortgage.

The agreement in question was made to secure advances amounting to $1,610. Of this amount, $1,275.31 was for back accounts of previous years; $267.75 was advanced under the paper, and only $198 was advanced after or at the time of its execution.

Upon intimation from the court that he would hold the paper-writing to be simply an agricultural lien for advances, and that the plaintiff's recovery would be limited to $198, the plaintiff submitted to a nonsuit and appealed.

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 the 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, the 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.

BAILEY v. BARNES