{
  "id": 8550856,
  "name": "LUTHER PRESTON MULL v. MINNIE C. MULL",
  "name_abbreviation": "Mull v. Mull",
  "decision_date": "1971-12-15",
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  "last_updated": "2023-07-14T21:18:15.024983+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Morris and Parker concur."
    ],
    "parties": [
      "LUTHER PRESTON MULL v. MINNIE C. MULL"
    ],
    "opinions": [
      {
        "text": "GRAHAM, Judge.\nMr. Simpson represents defendant, but in his motion he asked that a verdict be directed for plaintiff. In ruling on the motion the court stated \u201cthe ruling on the plaintiff\u2019s motion to set the verdict aside, the motion is granted.\u201d This lapsus linguae on the part of defendant\u2019s 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\u2019s statement, that the motion to set aside the verdict is granted.\nIn making his motion, defendant\u2019s 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.\nAdherence 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.\nNo complaint is made by plaintiff with respect to defendant\u2019s 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\u2019s 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, \u00a7 1594 (Supp.1970).\nIt 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, \u00a7 1594, at 93, 94. No abuse of discretion has been shown here and the appeal is subject to be dismissed.\nPlaintiff attempts to assign as error the court\u2019s denial of his motion for a directed verdict made at the close of defendant\u2019s 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.\nAppeal dismissed.\nJudges Morris and Parker concur.",
        "type": "majority",
        "author": "GRAHAM, Judge."
      }
    ],
    "attorneys": [
      "John H. McMurray for plaintiff appellant.",
      "Simpson and Martin by Wayne W. Martin for defendant appellee. ' \u2022"
    ],
    "corrections": "",
    "head_matter": "LUTHER PRESTON MULL v. MINNIE C. MULL\nNo. 7125DC648\n(Filed 15 December 1971)\n1. Rules of Civil Procedure \u00a7 7\u2014 form of motions \u2014 necessity for rule numbers\nA motion must state the rule number or numbers under which the movant is proceeding. Rule 6 of the General Rules of Practice for the Superior and District Courts.\n2. Rules of Civil Procedure \u00a7 50\u2014 directed verdict \u2014 party having burden of proof\nThe party having the burden of proof on all the issues was not entitled to a directed verdict. G.S. 1A-1, Rule 50.\n3. Appeal and Error \u00a7 54\u2014 determination whether an order was discretionary\nWhere 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.\n4. Appeal and Error \u00a7 40\u2014 dismissal of appeal \u2014 failure to include verdict and judgment in record\nThe Court of Appeals dismisses an appeal from the denial of plaintiff\u2019s motion for a directed verdict, since neither the verdict nor the judgment was included in the record on appeal.\nAppeal by plaintiff from Evans, District Judge, 17 May 1971 Session of District Court held in Burke County.\nPlaintiff filed complaint 6 February 1970 seeking an absolute divorce from defendant based upon an allegation that the parties had continuously lived separate and apart since 1965. In an answer filed 5 May 1970, defendant alleged abandonment in defense of plaintiff\u2019s action, and counterclaimed for temporary and permanent alimony. On 19 October 1970 plaintiff\u2019s action was dismissed upon his failure to appear and prosecute the action when called out in open court. No exception was taken to the order of dismissal.\nThereafter, defendant\u2019s action for alimony was tried by a jury. The first three of seven issues submitted to the jury were answered as follows:\n\u201c1A. Was Minnie C. Mull a resident of the State of North Carolina six months preceding this action?\nAnswer: Yes.\n1. Were Luther Preston Mull and Minnie C. Mull married as alleged in the Cross Action?\nAnswer: Yes.\n2. Was Luther Preston Mull the supporting spouse as alleged in the Cross Action?\nAnswer: No.\u201d\nThe record indicates that upon the return of the- jury\u2019s verdict the following transpired:\n\u201cMOTION\nMr. Simpson: If the Court pleases, we\u2019ll move that the Court, in its discretion, set aside the verdict of the jury as being contrary to the greater weight of the evidence and to direct a verdict for the plaintiff.\nThe Court: Gentlemen, let me see you in chambers a minute.\nMr. Simpson: Also, disregarded by the jury the instructions of the Court and also insufficient of the evidence to justify the verdict; that the verdict is contrary to law in that the presumption on Issue No. 2 is that the burden of proof according to the statutory provisions is that the husband is the supporting spouse and no evidence was introduced by the defendant to rebut this presumption.\nOrder\nThe Court: The ruling on the plaintiff\u2019s motion to set the verdict aside, the motion is granted.\nException No. 5\u201d\nPlaintiff purports to appeal from the court\u2019s order;\nJohn H. McMurray for plaintiff appellant.\nSimpson and Martin by Wayne W. Martin for defendant appellee. ' \u2022"
  },
  "file_name": "0154-01",
  "first_page_order": 178,
  "last_page_order": 181
}