Thompson v. Wrenn

Court of Appeals of North Carolina

Thompson v. Wrenn

301 S.E.2d 103, 61 N.C. App. 582, 1983 N.C. App. LEXIS 2725

CourtCourt of Appeals of North Carolina

DecidedApril 5, 1983

DocketNo. 823SC256

StatusPublished

This text of 301 S.E.2d 103 (Thompson v. Wrenn) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. Wrenn, 301 S.E.2d 103, 61 N.C. App. 582, 1983 N.C. App. LEXIS 2725 (N.C. Ct. App. 1983).

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Opinion

VAUGHN, Chief Judge.

Defendants’ sole argument is that the trial judge erred in denying their motion to dismiss pursuant to G.S. 1A-1, Rule 41(b).

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

[585]*585G.S. 1A-1, Rule 41(b). The judge may, as trier of facts, weigh the evidence, find the facts against plaintiff, and sustain defendant’s motion even though plaintiff has made a prima facie case. Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1973).

In this case, however, plaintiffs evidence established all the following requisite facts under G.S. 45-21.16(d). There was evidence for the Clerk to find the existence of a valid debt of which plaintiff was the holder; default; a right to foreclose under the instrument; and notice. Defendants presented no evidence. The trial judge found the above facts, and defendant failed to take exception to any of the findings. Since these facts are sufficient to support the trial judge’s conclusion of law, defendants’ motion to dismiss was properly denied, and their assignment of error is overruled.

For the reason stated, the trial court’s judgment is

Affirmed.

Judges Wells and Braswell concur.

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VAUGHN, Chief Judge.

Defendants’ sole argument is that the trial judge erred in denying their motion to dismiss pursuant to G.S. 1A-1, Rule 41(b).

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

[585]*585G.S. 1A-1, Rule 41(b). The judge may, as trier of facts, weigh the evidence, find the facts against plaintiff, and sustain defendant’s motion even though plaintiff has made a prima facie case. Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1973).

In this case, however, plaintiffs evidence established all the following requisite facts under G.S. 45-21.16(d). There was evidence for the Clerk to find the existence of a valid debt of which plaintiff was the holder; default; a right to foreclose under the instrument; and notice. Defendants presented no evidence. The trial judge found the above facts, and defendant failed to take exception to any of the findings. Since these facts are sufficient to support the trial judge’s conclusion of law, defendants’ motion to dismiss was properly denied, and their assignment of error is overruled.

For the reason stated, the trial court’s judgment is

Affirmed.

Judges Wells and Braswell concur.

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Bluebook (online)

301 S.E.2d 103, 61 N.C. App. 582, 1983 N.C. App. LEXIS 2725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-wrenn-ncctapp-1983.

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