#### GOLDSTON BROTHERS, INC., v. J. A. NEWKIRK and Wife, MARY A. NEWKIRK.

(Filed 17 October, 1951.)

1. Trial §21 *%*—

Where no exception is noted to the refusal of defendants’ motion to nonsuit when plaintiff rested its case, and thereafter, upon agreement that the court find the facts upon the evidence and stipulations of the parties, the parties place in the record a series of stipulations covering numerous pertinent facts, *held,*the case is reopened to receive such stipulations, and the motion of nonsuit not being renewed, the question of defendants’ right to nonsuit is not presented on the appeal.

2. Appeal and Error § ole—

Where the question of defendants’ right to nonsuit is not presented on the appeal, but the judgment of the lower court is modified to the extent that it allowed a compulsory continuance pending the determination of another action upon different issues pending in the Federal Court between a stranger to the present action and the defendants herein, the decision *280does not justify dismissal of the action in the lower court after remand, but leaves the case pending in substantially the same status as if the case had been submitted to a jury and mistrial ordered.

3. Pleadings § 22b—

The court rendered judgment under agreement of the parties that the court should find the facts from the evidence and stipulations of the parties. On appeal the judgment was modified and the cause remanded. *Held:*After remand the cause was pending in the Superior Court, and the Superior Court had authority to permit amendment within the purview of G.S. 1-163, and the refusal of the court to permit amendment on the ground that it was without authority to entertain the motion will be reversed on appeal.

Appeal by plaintiff from *Sharp, Special Judge,*June Term, 1951, of Lee.

Civil action by auction-broker to recover commissions for selling land under a special contract.

Tbis case was bere on former appeal. Tbe opinion is reported in 233 N.C. 428, 64 S.E. 2d 424, where tbe background facts are set out in detail. It appears tbat in tbe course of tbe former trial it was agreed by tbe parties tbat tbe presiding judge, upon tbe evidence and stipulations, might find tbe facts and render judgment without tbe intervention of tbe jury. Judge Carr, after bearing and considering tbe evidence and stipulations, entered judgment adjudging tbat tbe plaintiff “is not at tbe present time entitled to judgment against tbe defendants,” but ordering tbat tbe “action be not dismissed and tbat it be continued” for tbe purpose of enabling tbe plaintiff to file certain motions in tbe cause, if it be so advised. Both sides excepted to tbe judgment and gave notice of appeal. Tbe plaintiff perfected its appeal; tbe defendants did not. Tbe decision of tbis Court modified but upheld tbe judgment below.

When tbe case went back to tbe Superior Court, tbe plaintiff lodged a motion for leave to amend and for an opportunity to offer evidence in support of tbe complaint as amended, whereas tbe defendants moved tbe court to dismiss tbe action. Tbe court below held as a matter of law tbat it was “without authority to allow tbe plaintiff’s motion” to amend and, construing tbe decision of tbis Court as a mandate to dismiss tbe action as in case of nonsuit, denied plaintiff’s motion to amend and signed judgment dismissing tbe action.

From tbe judgment entered tbe plaintiff appeals, assigning errors.

*Gavin-, Jaclcson \& Gavin for plaintiff, appellant.*

*Rivers D. J ohnson and S. Ray Byerly for defendants, appellees.*

J OHNSON, J.

Tbe decision on tbe former appeal upheld tbe judgment of Judge Carr in its two material aspects, *i.e.,*(1) in adjudging tbat tbe *281plaintiff “is not at tbe present time entitled to a judgment against tbe defendants,” and (2) in ordering “that tbis action be not dismissed and tbat it be continued for tbe purpose of enabling tbe plaintiff to file” certain motions in tbe cause, if it be so advised. *(Goldston Brothers v. Newkirk, supra*(233 N.C. 428)).

Tbe former decision modifies Judge Carr’s judgment in only one particular, and tbat is in tbe intimation recited in tbe judgment, but not specifically adjudicated therein, tbat further proceedings in tbe instant case perhaps should be deferred and postponed to await developments in tbe related case of *Babcock Lumber Company v. J. A. Newkirk, et ux.,*pending in tbe U. S. District Court. Tbis Court felt tbat further proceedings in tbe instant case should not be deferred, except by consent, to await tbe uncertainty of developments in tbe related case in the District Court, particularly so in view of tbe fact tbat neither tbe parties nor tbe issues are tbe same in tbe two cases (17 C.J.S., p. 205), and therefore, in order to guard against tbe eventuality tbat Judge Carr’s judgment might be interpreted as. working a forced, indefinite postponement of tbe case, it was thought advisable to fix it definitely so there might be no delay in tbe further proceedings in the case, except by consent. Such is tbe limited intent and meaning of tbe single modifying limitation placed on Judge Carr’s judgment in tbe following language:

> “Tbe intimation in tbe judgment below tbat further proceedings in tbis case be held in abeyance pending tbe trial of tbe *Babcock case*has practical pertinency. But it is assumed tbat tbe intimation was intended only as a suggestion. It may not be interpreted as requiring a postponement of further proceedings in tbe instant case. 17 C.J.S., pp. 196 and 205.” *Goldston Brothers v. Newkirk, supra*(233 N.C. 428, mid. p. 433).

Tbe court below on tbe rehearing interpreted tbe former decision (1) as affirming tbe judgment of Judge Carr in “Tbat tbe plaintiff is not at tbe present time entitled to a judgment against tbe defendants,” and (2) as modifying by implication tbe judgment in so far as it ordered “tbat tbis action be not dismissed,” and so forth. Tbe lower court on tbe rehearing no doubt reasoned tbat inasmuch as tbe plaintiff upon tbe evidence adduced at the first bearing was not entitled to recover, it necessarily followed tbat tbe defendants were entitled to have tbe action dismissed “as of nonsuit,” and tbe court, assuming that such was tbe intent of tbe former decision, summarily dismissed tbe action.

Tbis assumption, however, is inconsistent with tbe theory of the former appeal and the decision of this Court based thereon. Briefly, the procedural facts in respect to the former appeal are these: When the plaintiff rested its case, the defendants moved to nonsuit. The motion was denied. No exception was noted. Thereupon, it was agreed by the parties that the court upon the evidence and stipulations might find the *282facts and render judgment thereon without the intervention of the jury. The parties then by way of supplementing and clarifying the facts .already in evidence, placed in the record a series of stipulations covering numerous pertinent facts. Thus, to receive these stipulations, the case was reopened. Thereafter the motion to nonsuit was not renewed. Thus the right to press for nonsuit was waived. See G.S. 1-183; McIntosh, North Carolina Practice and Procedure, p. 613; *Hawkins v. Dallas,*229 N.C. 561, 50 S.E. 2d 561. Moreover, when the court below entered judgment ordering “that this action be not dismissed,” and so forth, the only exception noted by the defendants was “to that portion of the judgment allowing the plaintiff to file such motions in this cause as the plaintiff ■deems necessary in the light of future developments in the *Babcock Lumber Company case.”*Also, while the defendants gave notice of appeal, no errors were assigned, and no exception was brought forward in the brief. Therefore, as appears in the closing paragraph of the former ■opinion of this Court, the defendants’ appeal was treated as abandoned. Thus it appears upon the face of the record, and in the former opinion, that the defendants waived their right to challenge the ruling of Judge Carr in ordering that the case “be not dismissed” but left on the docket for further proceedings.

Therefore, upon the record as presented, it was not given for this Court *ex mero moiu*to strike out of Judge Carr’s judgment the order “that the .action be not dismissed,” and the decision on the former appeal may not be interpreted as embodying such implication. This would give the defendants a delayed “second bite at the cherry,” to which, under settled rules of procedure, they are not entitled.

It follows, then, that, as concerning the plaintiff’s rights on motion to .amend and on motion to try the case again, the effect of Judge Carr’s judgment, as modified, is to leave the case pending and at issue on the docket in substantially the same status as if the case had been submitted to a jury and a mistrial ordered.

Therefore, the lower court may allow or disallow such amendments as it may think proper in the exercise of its sound discretion (G.S. 1-163; *Gilchrist v. Kitchen,*86 N.C. 20), bearing in mind, of course, that the nature of the cause of action as previously charted may not be substantially changed. *Perkins v. Langdon,*233 N.C. 240, 63 S.E. 2d 565.

In fairness to the able judge who presided on the rehearing, we are •constrained to observe that the former opinion of this Court gave only brief mention, — in its closing paragraph, — to the facts which closed the door on the defendants’ peremptory right of dismissal.

For the reasons assigned, the judgment below must be

Reversed.