Rutherford College, Inc. v. Payne

Connor, J.

Defendant’s assignments of error based on bis exceptions to tbe refusal of tbe trial judge to order tbe removal of tbis action from Catawba County, where it was begun, to Mecklenburg County, where tbe defendant resides, and also to bis refusal to allow defendant’s motion, at tbe close of all tbe evidence, for judgment as of nonsuit, manifestly cannot be sustained.

Tbe motion for tbe removal of tbe action on tbe ground that tbe principal office of tbe plaintiff corporation is not in Catawba County was first made before tbe clerk of tbe Superior Court of Catawba County. Tbe clerk’s findings of fact, and bis order denying tbe motion, on defendant’s appeal, were approved and affirmed by tbe judge of tbe Superior Court at November Term, 1935. Tbis was conclusive of defendant’s right to a removal of tbe action for trial on tbe facts alleged by him. See Broadhurst v. Drainage Comrs., 195 N. C., 439 , 142 S. E., 477 . In that case it is said: “It is well settled by numerous decisions of tbis Court that no appeal lies from an order of one judge of tbe Superior Court to another. It has been held that tbis principle does not apply where tbe order is merely interlocutory, and not determinative of tbe rights of tbe parties.

Bland v. Faulkner, 194 N. C., 427 , 139 S. E., 835 . When, however, tbe order is final witb respect to tbe matter involved, as in tbis case, tbe principle must be given full force, for otherwise we could not have an orderly administration of tbe law by tbe courts.

Dockery v. Fairbanks-Morse Co., 172 N. C., 529 , 90 S. E., 501 ;

Cobb v. Rhea, 137 N. C., 295 , 49 S. E., 161 ;

Cowles v. Cowles, 121 *797 N. C., 276, 28 S. E., 476 ;

Henry v. Hilliard, 120 N. C., 479 , 27 S. E., 130 ;

Alexander v. Alexander, 120 N. C., 472 , 27 S. E., 171 ;

May v. Lumber Co., 119 N. C., 96 , 25 S. E., 721 .”

The admission by the defendant in his answer that he executed the note described in the complaint, was offered in evidence by the plaintiff. This was sufficient to take the case to the jury. The burden was on the defendant to sustain by evidence the defense on which he relies in this action. The defendant offered evidence which tended to support the allegations of his answer. This evidence, however, was contradicted by evidence offered by the plaintiff. For this reason, there was no error in the refusal of the court to allow defendant’s motion, at the close of all the evidence, for judgment as of nonsuit.

There was error, however, in the peremptory instruction of the court to the jury. This instruction can be upheld only upon the contention that the facts alleged in the answer and shown by evidence offered by the defendant at the trial are not sufficient to constitute a defense to plaintiff’s recovery in this action. This contention cannot be sustained.

There was sufficient consideration for the note sued on in this action when it was signed and delivered by the defendant tO' the plaintiff. See James v. Dry Cleaning Co., 208 N. C., 412 , 181 S. E., 341 ;

Rousseau v. Call, 169 N. C., 173 , 85 S. E., 414 ;

University v. Borden, 132 N. C., 476 , 44 S. E., 47 .

The jury should have been instructed by the court that if they found from the evidence, the burden being upon the defendant, that at the commencement of this action the plaintiff was insolvent, and was in process of liquidation for the purpose of its ultimate dissolution, that Rutherford College had been discontinued as a school owned and operated by the Western North Carolina Conference of the Methodist Episcopal Church, South, for the promotion of Christian education, and that the plaintiff, by reason of its insolvency and of the discontinuance of Rutherford College as a school owned and operated by the Western North Carolina Conference of the Methodist Episcopal Church, South, for the promotion of Christian education, is now unable to hold and use an endowment fund for the promotion of Christian education, they should answer the issue, “Nothing.”

For the error in the instruction of the court to the jury, the defendant is entitled to a new trial. It is so ordered.

New trial.