Opinion
Filed 16 March, 1960.
Appeal and Error 3: Trial 49 — Where the court sets aside the verdict in the exercise of its discretion there is no judgment from which an appeal can lie, and appellant may not present the correctness of the court's ruling on its motion to nonsuit by challenging the exercise of the court's discretion in setting aside the verdict.
APPEAL by defendant from Bone, J., November 1959 Term, of EDGECOMBE.
John Hill Paylor, Fountain, Fountain, Bridgers Horton for plaintiff, appellee.
Owens Langley, Herbert H. Taylor, Jr., and Z. Creighton Brinson for defendant, appellant.
Plaintiff brought this action to recover payments alleged to be owing under a retirement contract with defendant. Defendant denied liability, asserting the alleged contract was without consideration, was ultra vires and void.
At the conclusion of plaintiff's evidence defendant moved for nonsuit. Its motion was denied. It offered no evidence. The court submitted. issues arising on the pleadings. The jury answered the issues in accord with defendant's contention. Defendant tendered a judgment based on the verdict. The court refused to sign the judgment tendered and in the exercise of its discretion set the verdict aside and ordered another trial. Defendant excepted to the order setting the verdict aside and appealed.
Defendant argues the court erred in setting the verdict aside because, as it contends, there was no evidence on which the jury could have returned a verdict in favor of plaintiff. In this manner it seeks to review the court's ruling in overruling the motion to nonsuit. No judgment has been rendered against defendant. It may not, by challenging the exercise of the court's discretion in setting the verdict aside, present for determination the correctness of the Court's ruling on the motion to nonsuit. White v. Keller, 242 N.C. 97, 86 S.E.2d 795; Byrd v. Hampton, 243 N.C. 627, 91 S.E.2d 671.
Appeal dismissed.