Mangum v. Surles

183 S.E.2d 839 (1971)

12 N.C. App. 547

Mavie M. MANGUM, Trustee for Mary B. Matthews v. Derry Thomas SURLES and wife, Minnie Marie Matthews Surles.

No. 7111SC546.

Court of Appeals of North Carolina.

October 20, 1971.

Certiorari Allowed December 7, 1971.

*841 Bryan, Jones, Johnson, Hunter & Greene by K. Edward Greene, Dunn, for plaintiff appellant.

Samuel S. Stephenson, Angier and D. K. Stewart, Dunn, for defendant appellees.

Certiorari Allowed by Supreme Court December 7, 1971.

HEDRICK, Judge.

Plaintiff first assigns as error the failure of the court to allow him to amend his complaint to conform to the evidence. The proposed amendment reads as follows:

"That the defendants, at the time Mary B. Matthews signed the deed alleged in the complaint, did with intent to deceive, practice a fraud upon the said Mary B. Matthews by inducing her to sign said instrument while representing the instrument *842 to be a note and knowing the said Mary B. Matthews did not know what she was signing."

G.S. § 1A-1, Rule 15(b) in pertinent part provides:

"When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion * * * but failure so to amend does not affect the result of the trial of these issues."

Under this rule the plaintiff could not have been prejudiced by the court's denial of the formal motion to amend the complaint. Moreover, a motion to amend the pleadings is addressed to the discretion of the trial judge, and is not reviewable on appeal in the absence of a showing of an abuse of discretion. Perfecting Service Co. v. Product Development & Sales Co., 264 N.C. 79, 140 S.E.2d 763 (1965). There is no evidence in this record tending to support the allegations in the proposed amendment to the complaint. This assignment of error is without merit.

The plaintiff next assigns as error the refusal of the court to submit to the jury the following issues:

"2. Was the execution of the deed dated March 25, 1969, procured by undue influence on Mrs. Mary B. Matthews? 3. Was the execution of the deed dated March 25, 1969, procured by fraud on Mrs. Mary B. Matthews?"

The refusal to submit an issue tendered is not error when there is no evidence in support of such issue adduced at trial. Hooper v. Glenn, 230 N.C. 571, 53 S.E.2d 843 (1949).

There is no evidence in this record tending to show that the defendants procured the execution of the deed dated 25 March 1969 by Mary B. Matthews by fraud or undue influence. This assignment of error is overruled.

Finally the plaintiff assigns as error the court's denial of the following motion:

"Upon the coming in of the verdict the plaintiff, in open court, moves to set the verdict aside as being contrary to the weight of the evidence."

Although the record reveals that this motion was not made in conformity with G.S. § 1A-1, Rule 7(b)(1) and Rule 6, General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure, we have considered the motion as one to set aside the verdict and for a new trial under G.S. § 1A-1, Rule 59(a).

A motion to set aside the verdict and for a new trial is addressed to the sound discretion of the trial judge whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970); 6A Moore's Federal Practice, § 59.05(5), p. 3756.

Plaintiff has failed to show any abuse of discretion on the part of the trial judge.

We have considered all of the assignments of error brought forward and argued in this appeal, and we conclude that plaintiff had a fair trial free from prejudicial error.

No error.

MALLARD, C. J., and CAMPBELL, J., concur.