Porter Bros. v. Jones

BROCK, Judge. Defendants undertake to assign as error the denial of their motion for change of venue to Onslow County for convenience of witnesses. No exception to the order appears in the Record on Appeal. An assignment of error must be supported by an exception previously noted. State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970). In any event, the ruling on the motion was within the discretion of the trial judge, and, absent a showing of abuse of discretion, the ruling will not be disturbed on appeal. 7 Strong, N. C. Index 2d, Venue, § 8, p. 520. Defendant assigns as error the order of reference in this case. Defendants’ pleadings raised questions concerning numerous transactions between plaintiff and defendants with respect to warranties on merchandise (chain saws and parts), and numerous transactions between defendant and defendant’s customers with respect to repairs under warranty and not under warranty. The mere fact that defendants did not question plaintiff’s procedures in its accounting for merchandise shipped to defendants does not mean that the examination of a complicated account is not necessary. Where the trial of an issue requires the examination of a complicated account the trial court may, upon its own motion, order a reference. G.S. 1A-1, Rule 53(a)(2). In our opinion the reference was properly ordered in this case. Defendants assign as error that they were deprived of their right to trial by jury. G.S. 1A-1, Rule 53(b) (2) provides that a reference does not deprive a party of a jury trial and sets out the steps to be followed to preserve the right. In this case the issues submitted by defendants are not appropriate for a determination of the exceptions; and, having failed to formulate appropriate issues based upon the exceptions taken, defendants waived their right to jury trial. See, G.S. 1A-1, Rule 53(b) (2)c. The findings of fact by the Referee are clearly supported by the evidence and the findings of fact clearly support the [225] conclusions of law. Therefore, we hold that Judge Falls was correct in approving and adopting the Referee’s findings of fact and conclusions of law. Defendants’ numerous exceptions and assignments of error to the findings of fact and conclusions of law are overruled. When plaintiff filed its motion asking the trial court to approve and adopt the Referee’s Report, it inappropriately made a motion for a directed verdict. A motion for directed verdict and a directed verdict are not proper where the trial is before the judge sitting without a jury. See, G.S. 1A-1, Rule 50. See also, Pergerson v. Williams, 9 N.C. App. 512, 176 S.E. 2d 885 (1970). Judge Falls approved and adopted each of the findings of fact and conclusions of law by the Referee, and this was sufficient to support the final judgment which was entered. However, because of plaintiff’s inappropriate motion for directed verdict Judge Falls added finding of fact 14 and conclusion of law 3 as follows: “14. The Court finds that after a careful review of the evidence on these actions that the evidence of the defendants is insufficient to raise issues of fact to be presented to a jury for trial, and that the plaintiff’s motion for directed verdict on its claim against the defendants in each case should be allowed, and the plaintiff’s motion for a directed verdict on the counterclaim of the defendant, Charles A. Jones, in case number 68 CvS 11 should be allowed.” “3. The evidence introduced by the defendants is not sufficient to raise issues of fact to be submitted to a jury for trial. Upon the facts and the law, the defendants, nor either of them have shown any right to relief, either as a defense to the claims of the plaintiff or as a counterclaim against the defendant, and the motion for directed verdict made by the plaintiff as to its claims against the defendants should be and is hereby allowed, and the plaintiff’s motion for directed verdict as to the counterclaim of the defendant, Charles A. Jones, against the plaintiff in Case No. 68 CvS 11 should be and is hereby allowed.” The above-quoted finding of fact 14 and conclusion of law 3 add nothing to the judgment which approved and adopted the findings of fact and conclusions of law by the Referee, and [226] enters the order for recovery recommended by the Referee. Therefore, finding of fact 14 and conclusion of law 3 are mere surplusage and should be stricken. It is interesting to note that the two stipulations recited as findings of fact 1 and 2 in the above-quoted Referee’s Report would seem to justify entry of the judgment as finally entered. The judgment of Judge Falls is modified by striking therefrom finding of fact 14 and conclusion of law 3, and, as so modified, is affirmed. Modified and affirmed. Judges Morris and Hedrick concur.