Opinion
(Filed 25 February, 1948.)
Appeal and Error § 2 —
The court, being of opinion that plaintiff's proof failed to correspond in some respects with her complaint, ordered a mistrial. Defendants appealed for failure of the court to rule on their motions to nonsuit, and plaintiff appealed on account of the statement of the court that the complaint needed amendment to conform to the proof. Held: Both appeals are premature and are dismissed.
APPEAL by plaintiff and defendants from Nettles, J., at September Term, 1947, of MADISON. Both appeals dismissed.
Carl R. Stuart for plaintiff.
J. M. Bailey, Jr., for defendants.
At the close of plaintiff's evidence the defendants moved for judgment of nonsuit. The trial judge, without ruling on the motion, expressed the view that the plaintiff's evidence did not in some respects correspond with her complaint, and in his discretion and ex mero motu withdrew a juror and ordered a mistrial, with permission to the plaintiff to amend her complaint. The defendants appealed, for that the court failed to rule on their motion to nonsuit, and plaintiff likewise appealed on account of the statement by the court that the plaintiff's complaint needed amendment to conform to the proof.
It is apparent that both appeals are premature, and must be dismissed. No judgment or final order, or order affecting a substantial right, has been entered below, and the cause remains on the docket of the Superior Court of Madison for such proceedings as may seem advisable to the parties. Johnson v. Ins. Co., 215 N.C. 120, 1 S.E.2d 381. See also Ten'Broeck v. Orchard, 79 N.C. 518.
The defendant's demurrer ore tenus, interposed for the first time in this Court, is not presently presented.
Plaintiff's appeal: Dismissed.
Defendant's appeal: Dismissed.