{
  "id": 8548779,
  "name": "MAX R. JOYNER v. V. W. THOMAS and wife, LULA C. THOMAS and H. E. LOWRY and wife, MARION T. LOWRY",
  "name_abbreviation": "Joyner v. Thomas",
  "decision_date": "1979-02-20",
  "docket_number": "No. 783DC351",
  "first_page": "63",
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  "casebody": {
    "judges": [
      "Judges PARKER and WEBB concur."
    ],
    "parties": [
      "MAX R. JOYNER v. V. W. THOMAS and wife, LULA C. THOMAS and H. E. LOWRY and wife, MARION T. LOWRY"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe court, sitting without a jury, granted defendants\u2019 motion for directed verdict at the close of plaintiff\u2019s evidence. As plaintiff points out, the correct motion would have been for an involuntary dismissal under G.S. 1A-1, Rule 41(b), since the action was being tried without a jury. Compare G.S. 1A-1, Rule 50, Comment. However, such a motion, though improperly designated, may be treated on appeal as having been made under Rule 41. Higgins v. Builders & Finance, Inc., 20 N.C. App. 1, 200 S.E. 2d 397 (1973), cert. den. 284 N.C. 616, 201 S.E. 2d 689 (1974). Treating this motion as made under Rule 41, we find that it was necessary for the trial court to comply with that Rule and make findings as provided in G.S. 1A-1, Rule 52(a)(1): \u201cthe court shall find the facts specially and state separately its conclusions of law thereon.\u201d\nA motion for involuntary dismissal under Rule 41(b) has replaced the motion for nonsuit in civil actions tried without a jury. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E. 2d 316 (1976). However, the questions presented by the two motions are not the same. The motion for nonsuit asked the court to determine whether the plaintiff\u2019s evidence, taken as true, would support a judgment for plaintiff. Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1973). The motion to dismiss, on the other hand \u201cpermits the trial judge to weigh the evidence, find facts against plaintiff and sustain defendant\u2019s motion at the conclusion of plaintiff\u2019s evidence even though plaintiff may have made out a prima facie case which would have repelled the motion for nonsuit.\u201d Whitaker v. Earnhardt, supra at 264, 221 S.E. 2d at 319. Because of this distinction, the language of the rule may be somewhat misleading in stating that defendant may move for dismissal \u201con the ground that upon the facts and the law the plaintiff has shown no right to relief.\u201d Our Rule 41(b) is identical to the federal rule. F.R.C.P. Rule 41(b). The present federal rule evolved from an original form which made no distinction between motions to dismiss in jury and non-jury cases, through an intermediate form which added the provision that when the motion was granted in a nonjury case the court might then determine the facts, to the present form which restricts the motion to dismiss to nonjury cases. 9 Wright & Miller, Federal Practice & Procedure \u00a7 2371. By allowing the court to determine the facts after granting the motion, the drafters of the rule established a distinction between a motion to dismiss and a directed verdict, id., and \u201c[g]rant of the defendant\u2019s motion [at the close of plaintiff\u2019s evidence] is a decision on the merits in favor of defendant.\u201d Id. at 224. This concept, though criticized, see Steffen, The Prima Facie Case in Non-Jury Trials, 27 U. Chi. L.Rev. 94 (1959), has been adopted by most state courts, including ours.\nIt has been said repeatedly that it is the better practice for the trial court to take the alternative presented by the Rule and \u201cdecline to render any judgment until the close of all the evidence.\u201d See, e.g. Whitaker v. Earnhardt, supra; Helms v. Rea, supra. Where the trial court does not do so, but instead chooses to grant defendant\u2019s motion at the close of plaintiff\u2019s evidence, he must then find the facts and state his conclusions of law separately as required by the Rule. Since the court here failed to make these necessary findings we must vacate and remand for a new trial. Carteret Co. General Hospital Corp. v. Manning, 18 N.C. App. 298, 196 S.E. 2d 538 (1973).\nSince a new trial is awarded it is unnecessary for us to address the errors assigned to the court\u2019s rulings on evidentiary questions.\nNew trial.\nJudges PARKER and WEBB concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "James, Hite, Cavendish & Blount, by James M. Roberts and E. Cordell Avery, for plaintiff appellant.",
      "No counsel for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "MAX R. JOYNER v. V. W. THOMAS and wife, LULA C. THOMAS and H. E. LOWRY and wife, MARION T. LOWRY\nNo. 783DC351\n(Filed 20 February 1979)\nRules of Civil Procedure \u00a7 41\u2014 trial without jury \u2014 involuntary dismissal\u2014 findings required\nWhere the court was sitting without a jury, defendants should have moved for an involuntary dismissal under G.S. 1A-1, Rule 41(b) rather than a directed verdict at the close of plaintiff\u2019s evidence; however, such a motion may be treated on appeal as having been made under Rule 41, and the trial court is required to make findings of fact and state his conclusions of law separately.\nAPPEAL by plaintiff from Wheeler, Judge. Judgment entered 17 November 1977 in District Court, PITT County. Heard in the Court of Appeals 30 January 1979.\nAn option on a tract of land given by defendants to plaintiff and one Collice C. Moore stated that the purchase price of $192,500 was to be paid in $86,500 cash, and the assumption of a note and deed of trust outstanding in the amount of $106,000, \u201cthe balance due ... at the date of sale . . . warranted not to exceed [$106,000].\u201d\nPlaintiff alleges that the actual amount due on the note it assumed when the option was exercised was $107,750 and sues to recover the $1,750 difference. A directed verdict was granted for defendants and plaintiff appeals.\nJames, Hite, Cavendish & Blount, by James M. Roberts and E. Cordell Avery, for plaintiff appellant.\nNo counsel for defendant appellees."
  },
  "file_name": "0063-01",
  "first_page_order": 91,
  "last_page_order": 94
}