Hines v. Pierce

23 N.C. App. 324 | N.C. Ct. App. | 1974

BRITT, Judge.

Plaintiff assigns as error the allowance of defendant’s motion for directed verdict on plaintiff’s claim for damages. This assignment has no merit.

In 7 Strong, N. C. Index 2d, Trespass To Try Title, § 2, pp. 250-51, we find: “In an action in trespass to try title, defendant’s denial of plaintiff’s title and of the trespass places the burden upon plaintiff to prove title in himself and trespass by defendant. Plaintiff must rely on the strength of his own title, which he must establish by some recognized method. Further, plaintiff must not only show good paper title, he must also show that the area claimed is embraced within the descriptions in his instruments .. .. ”

The methods recognized to establish title to real estate in this jurisdiction are enumerated in the often cited case of Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). Plaintiff’s proof of title failed to comply with any of the methods stated in Mobley. Furthermore, plaintiff failed to show that the disputed area from which the timber was cut and removed is embraced within the description in her deeds.

Plaintiff further argues that the granting of defendant’s motion for directed verdict on her claim for damages prejudiced her “processioning proceeding”; that it amounted to an expression of opinion by the trial judge. We reject this argument. The record reveals that the motions for directed verdict were made, and the second motion was allowed, in the absence of the jury. On the facts appearing, we hold that the court did not err in allowing the motion.

By five assignments of error, plaintiff contends “[t]he adverse comments, remarks and language of the trial judge with reference to the plaintiff’s evidence and plaintiff’s counsel were of such antagonistic propensity toward the plaintiff that she was denied her right to a fair trial,” in violation of G.S. 1A-1, Rule 51(a). The major portion of plaintiff’s brief is devoted to a discussion of these assignments. Suffice it to say, we have carefully considered the assignments and find them to be without merit. It is well settled that it is the duty of the trial judge to supervise and control the trial to prevent injustice to either party, and in discharging that duty the trial judge has large discretionary powers. 7 Strong, N. C. Index 2d, Trial § 9, pp. 266-67. We hold that the trial judge did not abuse his discretion in the conduct of the trial in this case.

Plaintiff assigns as error the action of the trial judge in ordering plaintiff, as a part of the costs, to pay the surveyors’ bill of $1,020. This assignment has no merit. Costs follow the final judgment, Whaley v. Taxi Co., 252 N.C. 586, 114 S.E. 2d 254 (1960), and where judgment is rendered in a defendant’s favor on the controverted issue, plaintiff is properly taxed with the costs. Bundy v. Credit Co., 202 N.C. 604, 163 S.E. 676 (1932). Where a plaintiff fails to recover in an action involving title to real property in which a court survey is ordered, the trial judge has the authority and duty to order the expense of the survey included in the costs. G.S. 38-4 (d) (Supp. 1973) ; Ipock v. Miller, 245 N.C. 585, 96 S.E. 2d 729 (1957). There is no showing that the surveyors’ bill in the case at bar was unreasonable.

We have considered the other assignments of error argued in plaintiff’s brief but find them to be without merit.

No error.

Judges Hedrick and Baley concur.