Montgomery v. . Blades , 223 N.C. 331 ( 1943 )

SEAWELL, J., dissenting. On 12 May, 1943, petition to rehear was allowed only on the question whether the decision in Montgomery v. Blades, 218 N.C. 680, should be held controlling, and the petition was duly docketed for a rehearing. Rule 44 (6), Rules of Practice in the Supreme Court, 221 N.C. 570. On 2 June, 1943, upon examination of petition and briefs filed the petition was dismissed for the reason that the grounds of error assigned in the petition are substantially the same as those argued and passed upon on the former hearing, and no new facts were made to appear, no new authorities were cited and no new positions were assumed. Weston v. Lumber Co., 168 N.C. 98,83 S.E. 693; Jolley v. Telegraph Co., 205 N.C. 108, 170 S.E. 145.

That the decision in 218 N.C. 680, was duly considered by the Court is manifested in the opinion assailed by these words: "It is contended that the `law of the case' was written when this case was before us at the fall term of 1940, 218 N.C. 680, 12 S.E.2d 217. At that term we held that the demurrer to the complaint should not have been sustained. We are now holding that the demurrer to the evidence in this case should be sustained. There is no inconsistency in such holdings. `The case was here before, 210 N.C. 815, on demurrer to the complaint, C. S., 511. It is here now on demurrer to the evidence, C. S., 567. The two are not the same in purpose or result. One challenges the sufficiency of the pleadings; the other the sufficiency of the evidence. In negligence cases, it is proper to sustain a demurrer to the evidence and to enter judgment of nonsuit.' Smithv. Sink, 211 N.C. 725, 192 S.E. 108. When the Smith case, supra, was first before us on demurrer to the complaint, such demurrer was overruled; when before us the second time the demurrer to the evidence was sustained. Exactly the same situation exists in the case at bar." Montgomery v.Blades, 222 N.C. 469.

Petition dismissed.