Opinion
(Filed 23 May, 1934.)
1. Trial D a —
Nonsuit under C.S., 567, is permissible only on demurrer to the evidence, and not on demurrer to the complaint or motion for judgment on the pleadings.
2. Judgments L a —
Upon a plea of estoppel by judgment, it is error for the court, simply upon the reading of the pleadings, to dismiss the action, Batson v. Laundry, ante, 371.
APPEAL by plaintiff from Cranmer, J., at January Term, 1934, of BLADEN.
A. M. Moore for plaintiff.
No counsel appearing for defendant.
Civil action in ejectment and to remove cloud on title.
Plaintiff alleges that she is the owner in fee and entitled to the immediate possession of two tracts of land in Bladen County (describing them); that the defendant is in possession thereof and wrongfully withholds said lands from plaintiff under a spurious claim of title; wherefore plaintiff demands possession, accounting for rents, damages and removal of defendant's claim as cloud on title.
The defendant denies the allegations of the complaint and pleads estoppel by judgment.
The judgment recites that "after reading the pleadings, the defendant, through his attorney, moved for judgment as of nonsuit under the Hinsdale Act," which motion was allowed and the action "dismissed as in case of nonsuit."
Plaintiff appeals, assigning errors.
Nonsuit under the Hinsdale Act, C.S., 567, is permissible only on demurrer to the evidence, and not on demurrer to the complaint or motion for judgment on the pleadings. Riley v. Stone, 169 N.C. 421, 86 S.E. 348.
The record shows no demurrer to the complaint. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85.
Nor was it according to precedent, simply upon reading the pleadings, to dismiss the action on the defendant's plea of estoppel. Batson v. Laundry, ante, 371.
Reversed.