Britt v. Allen , 291 N.C. 630 ( 1977 )

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231 S.E.2d 607 (1977) 291 N.C. 630
Alice Lucille Craven BRITT et al.
v.
Garland W. ALLEN.
No. 124.
Supreme Court of North Carolina.
January 31, 1977.
*611 Ottway Burton and Millicent Gibson, Asheboro, for plaintiffs-appellants.

Moser & Moser, Asheboro, for defendant-appellee.

SHARP, Chief Justice.

Plaintiffs' first assignment of error is that the Court of Appeals erred in affirming the trial judge's discretionary action in setting the verdict aside on the ground that it was against the greater weight of the evidence, and that unspecified errors of law were committed during the trial. Plaintiffs' contention is that the verdict was in accordance with the evidence that no errors of law occurred. This assignment has no merit and is overruled.

"The power of the court to set aside a verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice." Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936 (1902). The trial judge is "vested with the discretionary authority to set aside a verdict and order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony." Roberts v. Hill, 240 N.C. 373, 380, 82 S.E.2d 373, 380 (1954). Since such a motion requires his appraisal of the testimony, it necessarily invokes the exercise of his discretion. It raises no question of law, and his ruling thereon is irreviewable in the absence of manifest abuse of discretion. Williams v. Boulerice, 269 N.C. 499, 153 S.E.2d 95 (1967); Martin v. Underhill, 265 N.C. 669, 144 S.E.2d 872 (1965); Thomas v. Myers, 87 N.C. 31 (1882); 7 Strong's N.C. Index 2d Trial §§ 48, 51 (1968). Certainly, the record in this case manifests no abuse of discretion. When a verdict is set aside for error in law, the decision is not a matter of discretion. In such a situation, "the aggrieved party may appeal, provided the error is specifically designated." McNeill v. McDougald, 242 N.C. 255, 259, 87 S.E.2d 502, 504 (1955).

The adoption of the Rules of Civil Procedure (N.C.Sess.Laws 1967, ch. 954, § 4, effective 1 January 1970; N.C.Sess.Laws 1969, ch. 803, § 1) and the repeal of G.S. 1-207 (1953) did not diminish the trial judge's traditional discretionary authority to set aside a verdict. The procedure for exercising this traditional power was merely formalized in G.S. 1A-1, Rule 59, which *612 lists eight specific grounds and one "catchall" ground on which the judge may grant a new trial. Section (a)(9) of Rule 59 authorizes the trial judge to grant a new trial for "any other reason heretofore recognized as grounds for new trial." See Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intramural L.Rev. 1, 42-43 (1969).

Judge Long specifically found that the verdict in this case is "contrary to the evidence" and that it was set aside "in the discretion of the court." The fact that he also acknowledged he had committed unspecified errors of law detracted not one whit from the effect of his discretionary order setting aside the verdict. This statement was mere surplusage and did not make Judge Long's order appealable. See Atkins v. Doub, 260 N.C. 678, 133 S.E.2d 456 (1963); 1 Strong's N.C. Index 3d Appeal and Error § 54.3 (1976). See also Ward v. Cruse, 234 N.C. 388, 67 S.E.2d 257 (1951).

Plaintiffs' second assignment of error, that the Court of Appeals erred in remanding this case to the superior court for the entry of a directed verdict for defendant in accordance with his motion made at the close of all the evidence, must be sustained.

Upon reviewing the records in the four preceding appeals in this case, the Court of Appeals correctly concluded that in its opinion on the fourth appeal (21 N.C.App. 497, 204 S.E.2d 903) it had misinterpreted the evidence and so had "applied sound principles of law to a state of facts not supported by the evidence." Being of the opinion that but for its error on the fourth appeal, the trial judge would have directed a verdict for defendant in accordance with his motion at this last trial, the Court of Appeals reversed his order for a new trial, affirmed his order setting aside the verdict, and remanded the case for entry of judgment notwithstanding the verdict so "that justice would be served."

However, the present posture of the case will not permit its termination by this method. The question of the legal sufficiency of plaintiffs' evidence to go to the jury was not before the Court of Appeals. There being no abuse of discretion, the trial court's order setting aside the verdict as being against the greater weight of the evidence was not reviewable on appeal; there was left nothing from which an appeal would lie. Atkins v. Doub, 260 N.C. 678, 133 S.E.2d 456 (1963); Ward v. Cruse, 234 N.C. 388, 67 S.E.2d 257 (1951); Strayhorn v. Fidelity Bank, 203 N.C. 383, 166 S.E. 312 (1932); 1 Strong's N.C. Index 3d Appeal and Error § 54.3 (1976). A contention based on a question of law is not presented by an exception to the court's discretionary order setting aside a verdict. 7 Strong's N.C. Index 2d Trial § 51 (1968). Thus, the Court of Appeals disposed of this case by ruling on questions of law which were not the basis of any assignment of error and which, therefore, were not within the scope of review on appeal. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969); Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960); Jones v. Jones, 235 N.C. 390, 70 S.E.2d 13 (1932). See also App.R. 10 (1975).

Even if the court's discretionary order were appealable, it was defendant who made the motion to set the verdict aside, and in no view of the matter is he now an aggrieved party entitled to appeal under G.S. 1-271 (1969). Bethea v. Kenly, 261 N.C. 730, 136 S.E.2d 38 (1964).

Upon return of the verdict in favor of plaintiffs, had defendant then desired to preserve for appellate consideration the question of the sufficiency of their evidence to support a recovery against him, his proper course would have been to move under G.S. 1A-1, Rule 50(b) for a judgment notwithstanding the verdict. (This motion, of course, would have had to have been made prior to the time the judge exercised his discretion to set aside the verdict.) Had defendant's motion for judgment n.o.v. been denied and judgment entered against him, he could then have had the legal questions raised by his motion determined on his appeal. See Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intramural Law Rev. 1, 41 (1969); Investment Properties v. Allen, 281 N.C. 174, *613 188 S.E.2d 441 (1973), vacated on other grounds, 283 N.C. 277, 196 S.E.2d 262 (1973).

However, defendant did not follow this route and, since he did not, the Court of Appeals cannot remand the cause to the superior court with directions to enter judgment n.o.v., for G.S. 1A-1, Rule 50(b)(2) specifically provides:

"An appellate court, on finding that a trial judge should have granted a motion for directed verdict made at the close of all the evidence, may not direct entry of judgment in accordance with the motion unless the party who made the motion for a directed verdict also moved for judgment in accordance with Rule 50(b)(1) or the trial judge on his own motion granted, denied or redenied the motion for a directed verdict in accordance with Rule 50(b)(1)." See Hensley v. Ramsey, 283 N.C. 714, 727-729, 199 S.E.2d 1, 8-9 (1973); 2 McIntosh, North Carolina Practice and Procedure § 1488.45 (Phillips Supp.1970).

Rule 50(b) was rewritten by 1969 N.C. Sess.Laws, ch. 895, § 11 to incorporate section (2), which is set out in the preceding paragraph. The reasons for this revision are stated by Professor Phillips in his commentary on Rule 50:

"This provision [N.C.R. 50(b)(2)], not found in the Federal Rule counterpart, is designed to codify the result nonetheless dictated under that Rule by Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947) motion denied 331 U.S. 794, 67 S.Ct. 1725, 91 L.Ed. 1822. The reasons are important to an understanding of the intended application of the whole judgment n.o.v. practice. Where no judgment n.o.v. motion is made, the verdict winner is not given a pre-appeal chance to argue either before or after grant of the motion for the justice of giving him a new trial instead of granting judgment n.o.v. The trial judge is the judicial officer in the best position to make this decision. Consequently, if on appeal the appellate court were able to reverse and direct entry of judgment in accordance with the motion for directed verdict, it would almost invariably feel impelled to remand upon reversal to allow the trial judge to consider for the first time the propriety of granting a new trial as a matter of grace. This could result in a second appeal. The practice dictated by this Rule forces the parties and the courts into a procedure which will require a trial court ruling on both alternatives so that they can likewise both be disposed of on one appeal." 2 McIntosh, North Carolina Practice and Procedure § 1488.45 n. 14 (Phillips Supp.1970). See J. R. Elster, Highlights of Legislative Changes to the New Rules of Civil Procedure, 6 Wake Forest Intramural L.Rev. 267, 278-280 (1970).

In Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947), the defendant moved for a directed verdict at the close of all the evidence on the ground that the plaintiff's proof was insufficient to go to the jury. The motion was denied and, on the return of an adverse verdict, defendant did not move for judgment n.o.v. The Court of Appeals decided that certain evidence for the plaintiff had been improperly admitted and that without this evidence, the plaintiff's case would be insufficient to go to the jury. (153 F.2d 576 (4th Cir. 1946).) It then reversed the judgment of the trial court and directed that judgment be entered for the defendant. In reversing the decision of the Court of Appeals, the Supreme Court said that the trial judge had an unequalled "personal knowledge of the issues involved, the kind of evidence given, and the impression made by the witnesses. . . . Determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart. (Citations omitted.) Exercise of this discretion presents to the trial judge an opportunity, after all his rulings have been made and all the evidence has been evaluated, to view the proceedings in a perspective peculiarly available to him alone. He is thus afforded ``a last chance to correct his own errors without the delay, expense, or other hardships *614 of an appeal.'" Id. at 216, 67 S.Ct. at 755, 91 L.Ed. at 852-53.

We understand and appreciate the desire of the Court of Appeals to correct an inadvertence and to end this protracted litigation. Notwithstanding, this end may not be achieved by disregarding mandatory rules of procedure. It would, however, have been appropriate to dispose of this appeal by summarily dismissing it for appellant's flagrant disregard of Rule 19(d), Rules of Practice in the Court of Appeals of North Carolina. 2 N.C.App. 690 (1969); Rule 19(4), Rules of Practice in the Supreme Court of North Carolina. See App.R. 9(c), applicable since 1 July 1975 (1975 N.C.Sess.Laws, ch. 391, § 7).

In the record on appeal plaintiff-appellants have set out in question and answer form, just as it was transcribed by the court reporter, all the evidence elicited at the trial. The rambling, redundant, and confused record thus produced comprises 125 pages of the record when 25 would have sufficed for a proper narration. It has not only added to the cost of this fifth appeal, but has caused both appellate courts to expend time, which our rules requiring narration of the evidence were designed to save. Since none of the evidence was the subject of an exception, no judgment decision as to what evidence should be stated in question and answer form was involved. There can be no possible excuse for this disobedience of the rules of appellate procedure. Such an infraction constrains us to admonish all appellants that narration of the evidence as specified in App.R. 9(c) is mandatory.

The decision of the Court of Appeals affirming the trial court's order setting aside the verdict is affirmed. Its judgment vacating the trial court's order of a new trial and remanding the cause for entry of a directed verdict in accordance with defendant's motion at the close of all the evidence is reversed. Accordingly, this case is returned to the Court of Appeals with direction that it be remanded to the superior court for a trial de novo.

Affirmed in part; reversed in part; and remanded.