Marchant v. New York Life Insurance

(After stating the foregoing facts.)

1. A motion to dismiss a case upon the ground that under the pleadings and the evidence there can be no legal recovery is never a proper motion where the petition sets forth a cause of action, no matter whether the evidence fails, or to what extent it may fail, to sustain the allegations made. ■ Such a motion is different from a motion for a nonsuit, since it relates to the sufficiency both of the petition and of the evidence, while a motion for a nonsuit is in the' nature of a demurrer to the evidence only. In the brief filed in this court for the insurer,…