Girard Trust Bank v. Easton

182 S.E.2d 645 (1971) 12 N.C. App. 153

GIRARD TRUST BANK
v.
F. E. EASTON.

No. 718SC439.

Court of Appeals of North Carolina.

August 4, 1971. Certiorari Denied September 7, 1971.

Dees, Dees, Smith & Powell by William W. Smith, Goldsboro, for plaintiff appellant.

Braswell, Strickland, Merritt & Rouse by Roland C. Braswell, Goldsboro, for defendant appellee.

Certiorari Denied by Supreme Court September 7, 1971.

GRAHAM, Judge.

G.S. § 1A-1, Rule 63, provides that an appropriate substitute judge may perform duties remaining to be performed after a verdict is returned or findings of fact and conclusions of law are filed where the judge before whom the action was tried is unable to do so by reason of death, sickness or other disability.

It is not disputed that under this rule an appropriate judge may substitute for a disabled or a deceased judge before whom an action has been tried, only with respect to duties remaining to be performed after a verdict has been returned or findings of fact and conclusions of law have been filed. Consequently, the question here is simply whether Judge Peel correctly found that no verdict had been returned and that no findings of fact and conclusions of law had been filed. We hold that he did.

During the course of the trial the parties waived a trial by jury and proceeded to try the case before the court without a jury. At the conclusion of all of the evidence, Judge Bundy stated:

"It is not a matter of issues except as a basis of findings of facts and conclusions of law and the judgment. I will ask counsel to carefully draw up the findings based on this, and the conclusions of law, and the judgment."

Judge Bundy then proceeded to orally indicate an answer in favor of plaintiff to issues which had been prepared by counsel for defendant in anticipation of a jury trial. Plaintiff argues that in answering these issues the court returned a verdict within the meaning of Rule 63. We disagree. G.S. § 1A-1, Rule 52(a) (1), provides that in all actions tried without a jury, the court shall find the facts and state separately its conclusions of law thereon. Hence, it would have been inappropriate for Judge Bundy to have disposed of the merits of the case upon answers to jury type issues. His statement indicates that he did not intend to do so.

Plaintiff also argues that the issues, when considered together with the court's answers thereto, constitute sufficient findings of fact and conclusions of law to permit a substitute judge to proceed under Rule 63. We do not so find. The issues were intended as nothing more than a guide to assist counsel in preparing findings of fact and conclusions of law which might, or might not, be adopted by the court. The issues are insufficient to form any basis for review and a judgment based upon the issues alone would require a remand for sufficient findings of fact and conclusions of law.

Rule 63 does not contemplate that a substitute judge, who did not hear the witnesses and participate in the trial, may nevertheless participate in the decision making process. It contemplates only that he may perform such acts as are necessary under our rules of procedure to effectuate a decision already made. Under our rules, where a case is tried before a court without a jury, findings of fact and conclusions of law sufficient to support a judgment are essential parts of the decision making process.

Affirmed.

BROCK and VAUGHN, JJ., concur.