Mull v. Mull

185 S.E.2d 14, 13 N.C. App. 154, 1971 N.C. App. LEXIS 1177

• Court: Court of Appeals of North Carolina
• Decided: December 15, 1971
• Docket: No. 7125DC648
• Status: Published

Opinion

GRAHAM, Judge.

Mr. Simpson represents defendant, but in his motion he asked that a verdict be directed for plaintiff. In ruling on the motion the court stated “the ruling on the plaintiff’s motion to set the verdict aside, the motion is granted.” This lapsus linguae on the part of defendant’s counsel and. the judge would undoubtedly have been corrected if a formal written order had been prepared and entered. However, no order appears in the record, other than the judge’s statement, that the motion to set aside the verdict is granted.

In making his motion, defendant’s counsel did not state the rule number or numbers under which he was' proceeding as required by Rule 6 of the General Rules of Practice for the Superior and District Courts, Supplemental to the Rules of Civil Procedure. See Long v. Coble, 11 N.C. App. 624, 182 S.E. 2d 234 and Lee v. Rowland, 11 N.C. App. 27, 180 S.E. 2d 445.

Adherence to this requirement would have been particularly helpful here where defendant was apparently seeking a new trial on grounds set forth in G.S. 1A-1, Rule 59 (a) (5) (7) (9), and also a directed verdict under the provisions of G.S. 1A-1, Rule 50. Clearly, defendant, who had the burden of proof on all the issues, was not entitled to a directed verdict. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297.

No complaint is made by plaintiff with respect to defendant’s failure to comply with Rule 6 of the General Rules of Practice, and the order entered by the court is treated by the parties in their briefs as an order setting aside the verdict in the court’s discretion. Where an order setting aside a verdict does not show whether it was made in the exercise of discretion or as a matter of law, it will be considered to have been made in the exercise of discretion. Jones v.Insurance Co., 210 N.C. 559, 187 S.E. 769; 2 McIntosh, N. C. Practice and Procedure 2d, § 1594 (Supp.1970).

It is well established in this jurisdiction that a trial court has the inherent power to set aside a verdict in its discretion and its action in doing so is not subject to review on appeal, in the absence of a manifest abuse of discretion. Goldston v. Chambers, 272 N.C. 53, 157 S.E. 2d 676; Reece v. Reece, 6 N.C. App. 606, 170 S.E. 2d 546; 2 McIntosh, N. C. Practice and Procedure 2d, § 1594, at 93, 94. No abuse of discretion has been shown here and the appeal is subject to be dismissed.

Plaintiff attempts to assign as error the court’s denial of his motion for a directed verdict made at the close of defendant’s evidence and renewed at the close of all of the evidence. Since there is neither verdict nor judgment in the record, there is no basis upon which an appeal on this ground may rest, Atkins v. Doub, 260 N.C. 678, 133 S.E. 2d 456.

Appeal dismissed.

Judges Morris and Parker concur.