#### J. J. BAXTER v. MRS. D. A. IRVIN.

(Filed 28 February, 1912.)

1. Judgments Non Obstante — Pleadings—Confession and Avoidance.

A judgment non obstante verecKoto may be allowed only where the answer has confessed a cause of action and has set up matters in avoidance which were insufficient, although found true, to constitute a defense or a bar to the action.

*2782. Same — Evidence—Practice.

Upon a motion for judgment noil obstante veredicto, it must appear from the plea and verdict, and not from the evidence, that the plaintiff is entitled to the judgment.

3. Judgments Non Obstante — Motion, When Made.

A motion for judgment non obstante veredicto must be made after verdict.

4. Judgments Non Obstante — Demurrer—Instructions—Practice.

When in defense of an action to recover rents the defendant denies the plaintiff’s allegations and alleges a breach of contract as a bar to-the action, the answer raises the general issue, and, before verdict, the objecting party should either demur to the evidence, if it is insufficient, or request the judge to direct a verdict in his favor because of its insufficiency.

5. Courts, Justices’ — Pleadings—Practice—Interpretation of Statutes.

While we liberally construe pleadings filed in the court of a justice of the peace, they’must substantially conform to the statutory requirements, i. e., there shall be a complaint and answer (Revisal, sec. 451) ;.if oral, the justice may enter the substance on his docket, and, if written, the pleadings may he filed and reference made to them on the docket (section 1458) ; the complaint must state the facts constituting a defense or counterclaim (Revisal, secs. 1459,1460).

6. Same — Judgment Non Obstante — Justice’s Court — Appeal.

If the answer in the court of a justice of the peace raises the general issue, and there is no plea of confession and avoidance, a motion for judgment non obstante verdieto will not lie on appeal in the Superior Court after verdict.

Appeal by plaintiff from Wh&dbee, J., at November Term, 1911, of CRAVEN.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.

R. A. Nunn for plaintiff.

D. B. Henderson and A. D. Ward for defendant.

■Walker, J.

This action was brought in tbe court of a justice of tbe peace of Graven County to recover tbe sum of $100, with interest from 31 July, 1910, and tbe plaintiff complained in that court that it was due by contract for the rent of space in a storeroom. The defendant “denied tbe indebtedness, and *279alleged a breach of the contract by way of defense.” The plaintiff recovered in the justice’s court, and defendant appealed to the Superior Court, where there was a trial by jury. Both parties introduced evidence, and the jury returned a verdict for the defendant. Plaintiff thereupon moved for judgment non obstante veredicto. The charge of the court is not in the record, and it appears that no exceptions were taken during the course of the trial, before the verdict .was rendered. The court overruled the motion for judgment, and the plaintiff appealed to this Court from a judgment for defendant.

We think the ruling of his Honor was correct. At common law a judgment non obstante veredicto would be allowed only when the plea confessed a cause of action and set up matters in avoidance which were insufficient, although found true, to constitute either a defense or a bar to the action. Moye v. Petway, 76 N. C., 327; Ward v. Phillips, 89 N. C., 215; Walker v. Scott, 106 N. C., 56; Riddle v. Germanton, 117 N. C., 388. It was said in Moye v. Petway, supra, that the motion for such a judgment must, of course, be made after verdict, and the practice in such cases is very restricted. The motion will not be granted unless it appears from the plea and the verdict, and not from the evidence, that the plaintiff is entitled to the judgment. Before the verdict, the plaintiff could sign judgment as on “nil dicitr or as if there had been no plea or defense, treating the plea, or now the answer, as a sham one, and even if he traversed the matter relied on in avoidance, and the issue was found against him, he was still allowed to take judgment, notwithstanding the verdict, the practice having been adopted to discourage sham pleas and defenses. No such case is presented in this record. The plaintiff alleged that the defendant is indebted to him for rent, in the sum of $100, and the defendant simply denied the allegation and' alleged a breach of the contract as a bar to the action. This was not a plea by confession and avoidance, for it was tantamount to the general issue, or a direct traverse of the plaintiff’s allegation. If there is no evidence to establish the plaintiff’s case, the defendant should either demur to the evidence or request the court to charge the jury that there is no evidence, and that, therefore, they should answer the issue *280in favor of the defendant; and likewise, if there is no evidence to establish the defense, the plaintiff should request the court to give a similar charge in his favor; but this must be done before verdict, and, as said by Chief Justice Pearson in Moye v. Petway, surpa, this practice “has not the slightest bearing upon a motion for judgment non obstante veredicto, which is made by the plaintiff, after verdict, for insufficiency of the defendant’s matter in avoidance. There are no two matters of practice more entirely different in all respects.” In addition to this, it is familiar learning that any defect or insufficiency in the evidence must be called to the attention of the court, by a prayer for instructions, before verdict, so that cases may be tried on their true merits, and to prevent the loss of rights by mere inadvertence. Sutton v. Walters, 118 N. C., 495; S. v. Kiger, 115 N. C., 746; S. v. Hart, 116 N. C., 977. The party is not allowed to take two chances, that is, he may not speculate on the verdict, hoping that it will be in his favor, and, if he loses or is disappointed in his expectation, move after verdict to set it aside because of a failure or defect of proof, when, if he had. called the attention of the court to the matter before the case was submitted to the jury, his adversary might have remedied the defect or supplied the missing evidence.

The defendant’s counsel contended, though, that this rule of practice or procedure should not apply to cases in the court of a justice of the peace, for the reason that no pleadings are there required, or, rather, no formal pleadings; but this,. we think, is a misapprehension. It is true that the pleadings in that court may be oral, but it is expressly provided, by Revisal, sec. 457, that the “pleadings in the courts of justices of the peace shall be (1) the complaint of the plaintiff, (2) the answer of the defendant,” and by section 1458, that “the pleadings may be either oral or written; if oral, the substance may be entered by the justice on his docket; if written, they may be filed by the justice and reference to them be made on his docket.” It is further provided by section 1459 and section 1460, that “the complaint must state in a plain and direct manner the facts constituting the cause of action,” and “the answer may contain a denial of the complaint or any part thereof, and also a statement, in a *281plain and direct manner, of any evidence constituting a defense or counterclaim.” This Court bas been liberal in construing pleadings filed in a justice’s court, but, nevertheless, they should conform to the requirements of the statute. Illustration of the degree of particularity required in justice’s courts is found in the requirement that “the general issue entered on the justice’s docket will be considered as (merely) a general denial of plaintiff’s cause of action” (Blackwell v. Dibbrell, 103 N. C., 270); that the pendency of another action must be specially pleaded in the answer or deemed to be waived (Montague v. Brown, 104 N. C., 163; Hawkins v. Hughes, 87 N. C., 115); that a former judgment must be specially pleaded, as it will not be considered under an answer merely denying indebtedness to the plaintiff. Smith v. Lumber Co., 140 N. C., 375; Harrison v. Hoff, 102 N. C., 126; Blackwell v. Dibbrell, supra. It appears in this case that the general issue was pleaded, and on the face of the answer there is no suggestion of any confession of the plaintiff’s claim, with a statement of matter in avoidance. The case must, therefore, be governed by the general rule of practice, and we cannot examine the evidence for the purpose of determining whether there was a confession of the indebtedness and insufficient matter pleaded in avoidance.

No error.