Gragg v. Burns

Britt, J. Defendants assign as error the failure of the trial court to grant their motions to dismiss interposed when plaintiffs first rested and renewed at the conclusion of defendants’ evidence. It will be noted that this action was tried subsequent to 1 January 1970, thereby making it subject to the new Rules of Civil Procedure. Treating defendants’ motion as one for a directed verdict under Rule 50 (a), we do not think the assignment of error is well taken. After plaintiffs rested their case and defendants offered evidence, plaintiffs offered further evidence but defendants did not renew their motion following plaintiffs’ additional evidence. Under the former practice, if the motion to nonsuit was not renewed at the close of all the evidence, the sufficiency of the evidence was not presented on appeal. 7 Strong, N.C. Index 2d, Trial, § 20, p. 292. Rule 50 (a) contemplates that a motion for directed verdict shall be made “at the close of the [242] evidence offered by an opponent,” which was not done in this case. Therefore, we do not pass upon the sufficiency of the testimony to survive a proper motion for a directed verdict. Defendants contend that their motions to dismiss should have been granted for the reason that this is an action to establish a neighborhood public road under G.S. 136-67, et seq., and that the clerk of superior court has original jurisdiction over that type of action or proceeding. The case of Edwards v. Hunter, 246 N.C. 46, 97 S.E. 2d 463 (1957), appears to be similar but not identical to the case at bar. We quote from that opinion written by Bobbitt, J. (now C.J.) : “If it appeared from the complaint that the sole purpose of this action was to establish a neighborhood public road as defined by G.S. 136-67, defendants’ motion to dismiss on the ground that the statutory procedure therefor vests original jurisdiction in the clerk would be well taken. However, the segment of old road in controversy is not referred to in the complaint or in plaintiff’s affidavits as a neighborhood public road, but as a neighborhood road; nor does plaintiff refer to any of the provisions of G.S. Ch. 136, Art. 4.” The segment of the old road in controversy here is not referred to in the complaint as a neighborhood public road but as a public road; nor do plaintiffs in this action refer to any of the provisions of G.S. Ch. 136, Art. 4 in their complaint. The assignment of error relating to plaintiffs’ motions to dismiss is overruled. Defendants assign as error the introduction over their objection of a large aerial photograph, also referred to as a tax map from the Caldwell County Tax Office, purportedly portraying the section of Caldwell County in which the road in controversy is located. The assignment of error is well taken for the primary reason that the photograph or map was not properly authenticated for introduction into evidence. Stansbury, N.C. Evidence 2d, § 153, p. 383. We think defendants were sufficiently prejudiced by this error to warrant a new trial. Defendants assign as error certain portions of the trial judge’s charge to the jury. We do not pass upon these assignments as the objections raised may not occur upon a retrial. New trial. Campbell and Vaughn, JJ., concur.