Walton v. Meir, 7210SC224

• Decision Date: 26 April 1972
• Docket Number: No. 7210SC224,7210SC224
• Court: North Carolina Court of Appeals
• Parties: Russell C. WALTON, Jr., and wife, Margie G. Walton v. Ezra MEIR and wife, Violet S. Meir.

Page 56

188 S.E.2d 56

14 N.C.App. 183

Russell C. WALTON, Jr., and wife, Margie G. Walton v. Ezra MEIR and wife, Violet S. Meir.

No. 7210SC224.

Court of Appeals of North Carolina.

April 26, 1972.

Certiorari Denied by Supreme Court June 13, 1972.

Jordan, Morris & Hoke by John R. Jordan, Jr., and Kenneth B. Oettinger, Raleigh, for plaintiff appellants.

Manning, Fulton & Skinner by Howard E. Manning and John B. McMillan, Raleigh, for defendant appellees.

MALLARD, Chief Judge.

There was no exception, assignment of error or argument about the manner in which the motion for summary judgment was made or served (it was an oral motion made in open court), or about the manner in which the hearing was conducted or testimony presented. Although it does not appear that the movants complied with G.S. § 1A--1, Rule 7(b)(1), requiring that motions made prior to a hearing or trial be in writing, or G.S. § 1A--1, Rule 56(c) relating to service of motions for summary judgment, the parties stipulated that 'this matter was duly heard' and that 'his Honor had authority to hear this matter and to enter orders and a judgment therein'; therefore, the Waltons have not raised these procedural questions, and we will not disturb the judgment entered herein on procedural grounds. See, Ketner v. Rouzer, 11 N.C.App. 483, 182 S.E.2d 21 (1971).

We do feel, however, that it is appropriate to note the following: Under Rule 56(e), 'an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' In this proceeding the Waltons became the 'adverse party.'

The record does not reveal that the Waltons called any witnesses or presented evidence in any other form (with the possible exception of some exhibits), and summary judgment against them on that ground may have been appropriate. Four witnesses were called, however, two by the Meirs and two by the court, and the judgment herein appears to have been predicated solely upon their testimony and the pleadings of the parties; in effect, the hearing judge conducted a trial without a jury to determine if there was a genuine issue as to any material fact to be tried by the jury. Although Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971), is authority for the admission of oral testimony at a hearing on a motion for summary judgment, by virtue of Rule 43(e), we think that there is some danger in an overzealous use of such testimony.

In 6 Moore's Federal Practice (2d Ed.), 56.02(9), p. 2042, concerning the taking of oral testimony on a motion, it is said:

'Rule 43(e) provides that when a motion is based on facts not appearing of record the court may hear the matter on affidavits or the court may direct that the matter be heard wholly or partly on oral testimony or depositions. The provisions of Rule 43(e) Can be used in supplementing a summary judgment hearing through the use of oral testimony. This procedure should normally be utilized Only if a small link of evidence is needed, and Not for a long drawn out hearing to determine whether there is to be a trial.'

In 6 Moore's Federal Practice (2d Ed.), 56.11(8), pp. 2206 and 2207, it is said:

'Also the summary judgment procedure is apt to be wasteful and burdensome if the summary judgment hearing is a protracted hearing, in effect a trial, to determine that a trial must be held. Of course, if all the parties desire to and do turn the summary judgment into a court trial they cannot be heard to object. In that event the court should make findings of fact and conclusions of law in accordance with Rule 52. * * *'

Federal Rule 52(a) contains the following provision which is not specifically set out in the North Carolina Rule 52: 'Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).' The Waltons do not assign as error the fact that the trial judge made findings of fact and conclusions of law but do contend that these findings and conclusions were erroneous.

In view of the condition of the record and the stipulations of the parties, we will proceed to consider the appeal on its merits.

To the proceedings and judgment, the Waltons have taken thirty-one exceptions, ground under thirteen assignments of error, and present two questions for decision on appeal:

'1. Did the Trial Court err in concluding that no genuine issue as to any material fact exists for the jury to determine and that the defendants' Motion for Summary Judgment ought to be allowed?

2. Did the Trial Court err in allowing the defendants' Motion for Summary Judgment and declaring as a Finding of Fact and Conclusion of Law that Trinity Road is not a neighborhood public road within the meaning of North Carolina General Statute Sec. 136--67?'

We will consider the two questions together.

The pertinent portions of G.S. § 136--67, as rewritten in 1941 and again in 1949, read as follows:

'Neighborhood public roads.--All those portions of the public road system of the State which have not been taken over and placed under maintenance or which have been abandoned by the State Highway Commission, but which remain open and in general use as a necessary means of ingress to and egress from the dwelling house of one or more families, and all those roads that have been laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Public Welfare, and all other roads or streets or portions of roads or streets whatsoever outside of the boundaries of any incorporated city or town in the State which serve a Public use and as a means of ingress or egress for one or more families, regardless of whether the same have ever been a portion of any State or county road system, are hereby declared to be neighborhood public roads and they shall be subject to all of the provisions of §§ 136--68, 136--69 and 136--70 with respect to the alteration, extension, or discontinuance thereof. . . . Provided, that this definition of neighborhod public roads shall not be construed to embrace any street, road or driveway that serves an essentially Private use, and all those portions and segments of old roads, formerly a part of the public road system, which have not been taken over and placed under maintenance and which have been abandoned by the State Highway Commission and which do not serve as a necessary means of ingress to and egress from an occupied dwelling house are hereby specifically excluded from the definition of neighborhood public roads, and the owner of the land, hurdened with such portions and segments of such old roads, is hereby invested with the easement or right of way for such old roads heretofore existing.' (Emphasis added.)

This statute declares three distinct types of roads to be neighborhood public roads. The first portion of the statute concerns only those roads which were once a part of the 'public road system.' The pleadings, after the allowance of the Waltons' motion to strike the word 'system' from paragraph 14(a) of the complaint, do not assert that the dirt road in question was ever a part of the 'public road system,' and the evidence adduced at the hearing below tended strongly to show that it was not; therefore, this portion of G.S. § 136--67 is not applicable to the factual situation before us.

The second type of road declared by the statute (G.S. § 136--67) to be a neighborhood public road was all those roads that had been laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Public Welfare. There is no allegation or proof that the Department of Public Welfare ever did anything concerning the dirt road in question. Therefore, this portion of the statute is not applicable in this case.

The third type declared by the statute (G.S. § 136--67) to be a neighborhood public road (after the 1941 and 1949 revisions) was all those roads outside the boundaries of municipal corporations which served a public use and as a means of ingress and egress for one or more families. In their brief the Waltons contend that their claim for relief is based on this portion of the statute, the portion relating to the third category of neighborhood public road.

If the evidence at the hearing in the superior court discloses that the dirt road in question serves an essentially 'private' as opposed to a 'public use,' and that there was no genuine issue as to any material fact concerning this use, Judge Braswell did not err in granting the Meirs' motion for summary judgment, declaring that said road was not a neighborhood public road. See G.S. § 1A--1, Rule 56(c); Kessing v. National Mortgage Corp., Supra; and Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970).

The evidence adduced at the hearing in the superior court is summarized as follows, except where quoted: The first witness, called by the defendants Meir, was a highway engineer who had been employed by the State Highway Commission since 1937. His uncontroverted testimony tended to show that the dirt road in question had never been a part of the State or county system. He testified as follows:

'* * * Based upon the records of the State Highway Commission and the studies that I have made, Trinity Road has never crossed Reedy Creek Road and extended in a northeasterly direction. To my knowledge that section has never been maintained by the State or a part of the State System. It does not show anywhere on the records of the State Highway Commission in the inventories made of the county road system that were taken over by the State to have ever been taken over by the State.'

The Meirs' other witness was Mrs. Sara Busbee Wyatt, a former employee of Mr. W. Brantley...