Dawson v. Sugg

233 S.E.2d 639, 32 N.C. App. 650, 1977 N.C. App. LEXIS 2032

• Court: Court of Appeals of North Carolina
• Decided: April 6, 1977
• Docket: No. 768DC792
• Status: Published

Opinion

BRITT, Judge.

By their first assignment of error, defendants contend the court erred in signing and entering the judgment. The only question this assignment presents in this case is whether the judgment is supported by the verdict. Rule 10(a), Rules of Appellate Procedure, 287 N.C. 671, 699 (1975). We hold that the judgment is supported by. the verdict, therefore, the assignment is overruled.

By their second assignment of error defendants contend the court erred by refusing to allow the jury to consider evidence with respect to the boundary line between lands of plaintiffs and lands of defendants Sugg. We find no merit in this assignment.

Had defendants properly followed through on the denials set forth in their answer, they would have been entitled to present evidence with regard to, and have the jury pass upon, the location of the boundary line. But we think defendants waived that right.

While we do not pass upon the propriety of plaintiffs moving under G.S. 1A-1, Rule 53, the fact remains that the trial court’s order of 30 September 1975 adopting the report of the surveyor and establishing the true boundary line became a valid and binding order when it was not challenged by defendants. They did not except to or appeal from the order. Furthermore, they stipulated the provisions of the order in the “Order on Pretrial Conference.” In addition to that, at the pretrial conference they did not contend that they were entitled to an issue on the question of boundary location and the court submitted issues as contended by defendants.

We hold that defendants waived the rights they now attempt to claim under their second assignment.

By their third assignment of error, defendants contend the court erred in denying their “Rule 50” motion made at the. close of the evidence. This assignment has no merit.

We do not pass upon the propriety of the form of defendants’ motion, only their argument that the evidence was not sufficient to show that defendants Sugg knew of or condoned any wrongful act committed by defendant Mitchell. Pertinent evidence on this point is set forth above and no worthwhile purpose would be served in restating it here. It suffices to say that we think the evidence of liability on the part of defendants Sugg was sufficient to go to the jury.

Finally, by their fourth assignment of error, defendants contend the trial court erred in its charge to the jury in that it failed to explain the law as required by G.S. 1A-1, Rule 51. We have carefully considered this assignment and find it also to be without merit.

No error.

Judges Hedrick and Clark concur.