Reid v. Midgett , 25 N.C. App. 456 ( 1975 )

213 S.E.2d 379 (1975) 25 N.C. App. 456

Olive Corinne REID et al.
v.
Raymond MIDGETT.

No. 741SC968.

Court of Appeals of North Carolina.

April 16, 1975.

Twiford, Abbott & Seawell by Christopher L. Seawell, Manteo, for plaintiffs-appellees.

G. Irvin Aldridge, Manteo, for defendant-appellant.

MARTIN, Judge.

Defendant assigns as error the failure of the court to grant defendant's motion for involuntary dismissal at the close of all the evidence under Rule 41(b) of the Rules of Civil Procedure and the granting of plaintiffs' motion for involuntary dismissal at the close of all the evidence. It is apparent from the record and briefs that the trial court was sitting without a jury. The anomaly of requesting an involuntary dismissal under Rule 41(b) at the close of all the evidence is illustrated in defendant's brief where he asks this Court to reverse for failure of the trial court to consider the issues sitting as a jury. Rule 41(b) does not provide for a motion for involuntary dismissal made at the close of all the evidence. The fact that the parties made such motions at the close of all the evidence and that the trial judge ruled on those motions is of no consequence for thereafter the court rendered a judgment on the merits by making findings as provided in Rule 52(a) of the Rules of Civil Procedure. See Castle v. Yates Co., 18 N.C.App. 632, 197 S.E.2d 611 (1973). The facts, as found, supported the conclusions of law and the judgment, and we find no error therein.

Finally, defendant argues the trial court erred in admitting into evidence declarations by the late Cordugan Gray concerning the boundary line. In our opinion the requirements for admission of such evidence was met. In order to render hearsay evidence or declarations as to boundary competent it must appear that the declarant is now dead, that he was disinterested at the time when he made them, and that the declaration was made ante litem motam. White v. Price, 237 N.C. 347, 75 S.E.2d 244 (1953); Corbett v. Hawes, 187 N.C. 653, 122 S.E. 478 (1924); Yow v. Hamilton, 136 N.C. 357, 48 S.E. 782 (1904). Furthermore, it appears that evidence of a similar nature was thereafter admitted without objection. In addition, it is well settled in this jurisdiction that in a trial or hearing by the court the rules of evidence are not so strictly enforced as in a jury trial and it will be presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby. Hinson v. Hinson, 17 N.C.App. 505, 195 S.E.2d 98 (1973). This assignment of error is overruled.

For the reasons stated, the judgment appealed from is

Affirmed.

VAUGHN and ARNOLD, JJ., concur.