Morrio v. Asby , 48 N.C. App. 694 ( 1980 )

MORRIS, Chief Judge.

It is apparent from the judgment itself that the court based its action in vacating the judgment of 14 February 1978 on Heidler v. Heidler, 42 N.C. App. 481, 256 S.E. 2d 833 (1979), the opinion which was filed 31 July 1979, after the motions to set aside were filed by defendants on 8 February 1979. The trial court correctly interpreted Heidler as holding that G.S. 1A-1, Rules 38(d) and 39 (a) “do not provide that failure to appear at trial constitutes consent to a withdrawal of a valid jury trial demand.” On 3 June 1980, the opinion in Frissell v. Frissell, 47 N.C. App. 149, 266 S.E. 2d 866 (1980) was filed. There the judges who sat in Heidler joined the judges who sat in Frissell in holding that “in addition to the waiver of right to jury trial as established by N.C.G.S. 1A-1, Rules 38(d) and 39(a), as set forth in Heidler, a party may waive his right to jury trial by failing to appear at trial,” upon the authority of Sykes v. Belk, 278 N.C. 106, 179 S.E. 2d 439 (1971), and Ervin Co. v. Hunt, 26 N.C. App. 755, 217 S.E. 2d 93, cert. denied, 288 N.C. 511, 219 S.E. 2d 346 (1975). This, of course, requires that we reverse the trial court’s holding that the judgment of 14 February 1978 is void.

Defendants do not contend that the second conclusion of law, to wit: “The defendants have established no other grounds entitling them to relief from the operation of the judgment in this matter” is not supported by the findings of fact. No exception is made to this conclusion, and there is no cross assignment of error. Indeed defendants state in their brief: “Although defendants contend that there was ample other basis for the Court to award a new trial, the only basis given was that stated in the Court’s Conclusion of Law No. 1. Nothing else is before this Court.” We, therefore, deem it unnecessary to discuss any other aspect of the case, and the judgment of the trial court is

Reversed.

Judges Hedrick and Webb concur.