Rose & Day, Inc. v. Cleary

187 S.E.2d 359 (1972)

14 N.C. App. 125

ROSE & DAY, INC. v. Jim Ray CLEARY.

No. 7223DC169.

Court of Appeals of North Carolina.

March 29, 1972.

Certiorari Denied May 24, 1972.

Randleman, Randleman & Randleman, by Richard N. Randleman, Yadkinville, for plaintiff appellee.

Allen, Henderson & Allen by William M. Allen, Jr., Elkin, for defendant appellant.

Certiorari Denied by Supreme Court May 24, 1972.

BRITT, Judge.

Defendant assigns as error the denial of his motion for a trial by jury. In his brief defendant admits that he did not demand a jury trial as provided by Rule 38 of the Rules of Civil Procedure and that his motion for trial by jury was based on Rule 39(b). Rule 39(b) provides as follows: "Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a trial by jury in an action in which such a demand might have been made of right, the court in its discretion upon motion or of its own initiative may order a trial by jury of any or all issues." (Emphasis added). Clearly the allowance of a jury trial under this section is within the discretion of the trial *360 court and no abuse of discretion is made to appear in the present case. The asssignment of error is overruled.

In his next assignment of error, defendant contends that the court abused its discretion in reopening the case at the close of all the evidence after plaintiff and defendant had rested and allowing plaintiff to introduce further evidence. There is no merit in this contention. The trial court in its discretion may allow a plaintiff or defendant to introduce further evidence after they have rested. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934); Featherston v. Wilson, 123 N.C. 623, 31 S.E. 843 (1898); Smith v. Perkins, 5 N.C.App. 120, 168 S.E.2d 14 (1969). See also Williams v. Averitt, 10 N.C. 308 (1824) and Kelly v. Goodbread's Ex'rs, 4 N.C. 468 (1816). Defendant has failed to show any abuse of discretion in the present case, therefore, the assignment of error is overruled.

Finally, defendant contends that the evidence did not support the findings of fact upon which to base the conclusions of law. The record reveals that defendant did not except to either of the findings of fact or conclusions of law but only to the signing of the judgment.

It is well settled in this jurisdiction that an exception to the findings of fact and conclusions of law and the judgment of the court, without exception to a particular finding, is a broadside exception which does not present for review the admissibility of the evidence on which the findings were made or the sufficiency of the evidence to support the findings. 1 Strong, N.C. Index 2d, Appeal and Error, § 28, p. 157. Where there are no exceptions to the findings of fact, the findings are presumed to be supported by competent evidence and are binding on appeal. Rural Plumbing & Heating, Inc. v. Realty Co., 263 N.C. 641, 140 S.E.2d 330 (1965). In the instant case, we hold that the findings of fact fully support the conclusions of law and the judgment.

For the reasons stated, the judgment appealed from is

Affirmed.

CAMPBELL and GRAHAM, JJ., concur.