Helms v. Rea ( 1972 )

BROCK, Judge.

Defendant argues that the trial judge committed error in his findings of fact and committed error in failing to find other facts. It is familiar learning that, when a case is tried by the judge without a jury, the judge’s findings of fact are conclusive on appeal if supported by competent evidence. In our view, all of the judge’s findings of fact in this case are based upon competent evidence. He made all the findings necessary to resolve the crucial issues, and the findings support the judgment entered. Even if we were inclined to resolve the factual conflict differently, we would not be at liberty to do so.

At the close of all the evidence, plaintiff moved for involuntary dismissal of defendant’s counterclaim. This motion was allowed and defendant contends this was error.

At that point of the trial of the case, all of the evidence was before the judge. If the defendant had carried his burden of satisfying the judge (trier of the facts) by the greater weight of the evidence that the facts were as contended by defendant, then surely the judge would not have dismissed the counterclaim. On the other hand, if defendant had failed to carry his burden of so satisfying the judge, it would not matter that the counterclaim was dismissed, because there would be no finding in defendant’s favor anyway. From the findings of fact and from the judgment, it is abundantly clear that the plaintiff satisfied the judge by the greater weight of the evidence that the facts were as contended by plaintiff; therefore, whether defendant’s counterclaim was dismissed at the close of all the evidence is immaterial. In our opinion, even if we concede there was technical error in dismissing defendant’s counterclaim, it was not prejudicial error.

We have reviewed defendant’s remaining assignments of error and hold them to be without merit.

No error.

Judges Mokris and Hedrick concur.