
    27124.
    Gibbs, trustee, v. Gibbs.
   Felton, J.

In a suit in tort for unliquidated damages, where the defendant has not filed an answer, the plaintiff may rely upon the presumption that the material allegations, with the exception of the allegations as to damages, are true, and if he proves damages he is entitled to a verdict, and judgment. Code, §§ 110-401, 110-403, 110-405, 110-406. However, where the court requires the plaintiff to make out his entire case, and, instead of insisting on his rights, he seeks to make out his case, and his evidence conclusively overcomes the presumption that his allegations are true, it is the duty of the court to order a nonsuit. In such a case, where the plaintiff’s evidence showed that the statutory homestead which constituted his alleged basis of a right to recover the property sued for (the petition claiming the right to recover eleven head of cows, calves, and steers, the original homestead property and its increase) was void in so far as it sought to exempt “ten head of stock cattle,” and the petition did not allege any other fact showing the plaintiff’s right to recover, the court did not err in ordering a nonsuit. It is unnecessary to pass on the other assignments of error.

Decided October 24, 1938.

Krauss & Strong, for plaintiff.

Judgment affirmed.

Stephens, P. J., and Suiion, J-, concur.  