Neasham v. Day

237 S.E.2d 287 (1977) 34 N.C. App. 53

Leo B. NEASHAM and wife, Winnifred Neasham
v.
John D. DAY and wife, Doris Day.

No. 7630SC958.

Court of Appeals of North Carolina.

September 7, 1977.

No brief filed for plaintiff-appellee.

McKeever, Edwards, Davis & Hays by George P. Davis, Jr., Bryson City, for defendant-appellant.

ARNOLD, Judge.

Only one assignment of error is contained in the record on appeal:

"The Court erred in denying the defendants' Motions for a Directed Verdict at the close of plaintiffs' evidence and renewed at the closing of all the evidence. Defendants' Exceptions No. 1 and 2"

In an action tried without a jury the appropriate motion by which defendants test the sufficiency of plaintiffs' evidence is by motion for dismissal. G.S. 1A-1, Rule 41(b). However, this Court may elect to consider defendants' motions for directed verdict as motions to dismiss in order to pass on the merits of this appeal. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E.2d 316 (1976).

A motion to dismiss made pursuant to Rule 41(b) permits the trial judge to weigh the evidence, to find facts against the plaintiff, and to sustain defendants' motion at the conclusion of plaintiffs' evidence even though plaintiff may have made out a prima facie case which could have precluded a directed verdict for defendant in a jury case. Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1972). Under Rule 41(b), the trial judge may decline to render judgment until all the evidence is in. The practice of withholding judgment until all the evidence has been presented is considered the better practice "except in the clearest cases." Helms v. Rea, supra.

The question raised by defendants' motion to dismiss made at the close of all the evidence is whether any findings of fact could be made from the evidence which would support a recovery for plaintiffs. Pegram-West, Inc. v. Homes, Inc., 12 N.C. App. 519, 184 S.E.2d 65 (1971). If such findings can be made the motion to dismiss must be denied.

In the case at bar, competent evidence introduced by plaintiffs tended to show that the Claude Hunter and Lawton Zachary roads were excepted from the deed which conveyed property to defendants, and this evidence is sufficient to justify a finding of fact in support of judgment for plaintiffs. Hence, there is no basis for defendants' contentions that denial of their notions was error. Defendants' Assignment of Error is, therefore, without merit.

Defendants also undertake to attack the conclusions of law reached by the trial court as being unsupported by the findings of fact. Under App.R. 10(b)(2) defendants' contentions will not be considered on this appeal. There are no exceptions, and no assignments of error, in the record on appeal to any conclusions of law or findings of fact. App.R. 10(b)(2), in pertinent part, provides: "A separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error." Koehring Co. v. Marine Corp., 29 N.C.App. 498, 224 S.E.2d 654 (1976); pet. denied 290 N.C. 308, 225 S.E.2d 833 (1976). Also, see Fetherbay v. Motor Lines, 8 N.C.App. 58, 173 S.E.2d 589 (1970), where this Court noted that the State Constitution gives exclusive authority to the Supreme Court to make rules of practice and procedure for the appellate division, and even where the North Carolina General Statutes conflict with Rules of Appellate Procedure, the Rules of Appellate Procedure will prevail. Id. at 60, 173 S.E.2d at 591.

Affirmed.

PARKER and MARTIN, JJ., concur.