{
  "id": 8552786,
  "name": "GLEN FOREST CORPORATION v. MICHAEL B. BENSCH and Wife, ELEANOR M. BENSCH",
  "name_abbreviation": "Glen Forest Corp. v. Bensch",
  "decision_date": "1970-10-21",
  "docket_number": "No. 7010SC447",
  "first_page": "587",
  "last_page": "589",
  "citations": [
    {
      "type": "official",
      "cite": "9 N.C. App. 587"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "52 S.E. 2d 876",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1949,
      "opinion_index": 0
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    {
      "cite": "230 N.C. 322",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1949,
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    {
      "cite": "382 F. 2d 701",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        2076100
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      "year": 1967,
      "opinion_index": 0,
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        "/f2d/382/0701-01"
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Mallard and Judge Graham concur."
    ],
    "parties": [
      "GLEN FOREST CORPORATION v. MICHAEL B. BENSCH and Wife, ELEANOR M. BENSCH"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nPetitioner\u2019s Appeal\nTo sustain petitioner\u2019s position on this appeal would in effect work an amendment to G.S. 1A-1, Rule 50. That rule provides for a motion for a directed verdict at the close of plaintiff\u2019s evidence or at the close of all the evidence. It does not give a litigant the option of waiting until after the verdict is in to make the motion for a directed verdict to attempt to preserve his right to move for judgment notwithstanding the verdict. The language of G.S. 1A-1, Rule 50, is almost identical to the language of Rule 50, Federal Rules of Civil Procedure. The Federal Courts have often interpreted the language used in that portion of the rule with which we are now concerned. That well-recognized interpretation is that the making of an appropriate motion for a directed verdict is an absolute prerequisite for the motion for judgment notwithstanding the verdict. 5 Moore\u2019s Federal Practice, \u00a7 50.08, p. 2357, (and cases there cited). In Starling v. Gulf Life Co., 382 F. 2d 701 (CA 5th, 1967), appellant joined her motion for new trial with a motion for judgment notwithstanding the verdict. The Court noted that the latter motion was a nullity, because appellant had failed to move for a directed verdict and said \u201cSince there was no motion for judgment n.o.v. in a legal sense, this court is without power to grant one and therefore must confine its consideration to the motion for new trial.\u201d\nPetitioner candidly acknowledges this when it states it does not seriously contend that it was entitled to a directed verdict but wanted to preserve and protect the right to move for judgment notwithstanding the verdict. Making the motion nunc pro tune does not effectively cure the defect. Petitioner\u2019s motion for directed verdict came too late and was of no effect. Without it petitioner had no standing to move for judgment notwithstanding the verdict, and the purported motion was properly denied.\nRespondents' Appeal\nRespondents appeal from the entry of order setting aside the verdict and granting a new trial. This motion by petitioner was made under G.S. 1A-1, Rule 59(a) (5) and (7). Respondents argue that the order granting the motion to set aside the verdict and grant a new trial cannot be effective because the court failed to specify the grounds for allowing the motion. G.S. 1A-1, Rule 59 (d) provides.: \u201cNot later than 10 days after entry of judgment the court of its own initiative, on notice to the parties and hearing, may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.\u201d The order from which respondent attempts to appeal was not, however, one entered of the court\u2019s own initiative. It was entered as the result of motion of a party, and we find nothing requiring the court to specify the grounds therefor.\nIt has long been the rule in this State that a motion to set aside the verdict and for a new trial is \u201caddressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal.\u201d Pruitt v. Ray, 230 N.C. 322, 52 S.E. 2d 876 (1949). Rule 59 of the Federal Rules of Civil Procedure is comparable to G.S. 1A-1, Rule 59. We find no distinction in application of the principle. \u201cIn line with the English common law, a timely motion for new trial is addressed to the sound judicial discretion of the trial court.\u201d 6A Moore\u2019s Federal Practice, \u00a7 59.05(5), p. 3756. Respondent does not argue that there has been an abuse of discretion nor is an abuse shown by the record.\nPetitioner\u2019s appeal \u2014 affirmed.\nRespondents\u2019 appeal \u2014 affirmed.\nChief Judge Mallard and Judge Graham concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Basil L. Sherrill for petitioner.",
      "Allen Langston for respondents."
    ],
    "corrections": "",
    "head_matter": "GLEN FOREST CORPORATION v. MICHAEL B. BENSCH and Wife, ELEANOR M. BENSCH\nNo. 7010SC447\n(Filed 21 October 1970)\n1. Rules of Civil Procedure \u00a7 50\u2014 motion for directed verdict \u2014 judgment n.o.v.\nLitigant\u2019s motion for directed verdict nunc pro tuno, which was made after the jury had returned its verdict in the case, came too late to preserve its right to move for judgment notwithstanding the verdict; therefore, litigant\u2019s purported motion for judgment n.o.v. was properly denied. G.S. 1A-1, Rule 50.\n2. Rules of Civil Procedure \u00a7 59\u2014 order granting a new trial \u2014 necessity for statement of grounds\nThe trial court was not required to specify the grounds for its order allowing litigant\u2019s motion to set aside the verdict and grant a new trial, since the order was not entered on the trial court\u2019s own initiative. G.S. 1A-1, Rule 59(d).\n3. Rules of Civil Procedure \u00a7 59\u2014 motion for new trial \u2014 discretion of court \u2014 review on appeal\nA motion to set aside the verdict and for a new trial is addressed to the sound discretion of the trial judge, whose ruling is not reviewable on appeal in the absence of abuse of discretion.\nAppeal by petitioner and respondents from Bailey, /., 17 April 1970 Civil Session, Superior Court of Wake County.\nThis is a proceeding under Chapter 38, General Statutes of North Carolina, to determine a boundary line, instituted by petitioner on 17 June 1968. To the judgment of the Clerk of Superior Court entered 9 July 1970, petitioner excepted and \u25a0appealed to the Superior Court. The matter was tried in Superior Court by a jury, and the jury returned a verdict establishing \u25a0as the boundary line the line contended for by respondents. After the coming in of the verdict, petitioner moved the court in writing under Rule 50 that it be permitted nunc pro tunc to move for a directed verdict as of the close of all the evidence, stating the grounds for the motion. The court allowed the petitioner to move nunc pro tunc for a directed verdict at the close -of all the evidence but denied the motion for a directed verdict. Petitioner then filed its motion for a judgment non obstante vere-dicto under Rule 50(b), stating the grounds therefor. This motion was denied. Petitioner then moved in writing, under Rule 59 (a) (5) and (7), that the court set aside the verdict and grant a new trial, stating the grounds for the motion. This motion was allowed. Respondents appeal from the order setting aside the verdict and granting a new trial. Petitioner appeals from the order denying its motion for directed verdict and the order denying its motion for judgment notwithstanding the verdict.\nBasil L. Sherrill for petitioner.\nAllen Langston for respondents."
  },
  "file_name": "0587-01",
  "first_page_order": 611,
  "last_page_order": 613
}