Southern Bell Telephone & Telegraph Co. v. Petty Communications, Inc., 27 N.C. App. 673 (1975)

Dec. 3, 1975 · North Carolina Court of Appeals · No. 7518DC620

27 N.C. App. 673

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY v. PETTY COMMUNICATIONS, INC. and BILLY R. TUCKER

No. 7518DC620

(Filed 3 December 1975)

Appeal and Error § 42— evidence omitted from record — presumption

When the evidence is not included in the record, it will be presumed that the evidence was sufficient to support the findings of fact.

Appeal by defendant from Kuykendall, Judge. Judgment entered 22 April 1975 in District Court, Guilford County. Heard in the Court of Appeals 12 November 1975.

Plaintiff instituted this action to recover $1,234.80 balance allegedly due on a telephone bill. In its complaint, plaintiff alleges that the telephone service was rendered to the corporate defendant and that payment for the service was guaranteed in writing by defendant Tucker.

The corporate defendant did not answer and default judgment was rendered against it in the amount prayed. Defendant Tucker filed answer in which he denied liability for the indebtedness.

Jury trial was not requested and, following a trial without a jury, the court entered judgment in which it made findings of fact and conclusions of law consistent with plaintiff’s contentions and adjudged that plaintiff recover of defendant Tucker the sum of $1,234.80, plus interest and costs. Defendant Tucker appealed.

Brooks, Pierce, McLendon, Humphrey & Leonard, by W. Erwin Fuller, Jr., for plaintiff appellee.

Defendant Billy R. Tucker, in propria persona.

BRITT, Judge.

All of appellant’s exceptions relate to the findings of fact set forth in the judgment but the record on appeal does not contain the evidence presented at trial. It is well settled that when the evidence is not included in the record, it will be presumed that the evidence was sufficient to support the findings of fact. Mt. Olive v. Price, 20 N.C. App. 302, 306, 201 S.E. 2d 362, 364 (1973) ; Cobb v. Cobb, 10 N.C. App. 739, 741, 179 S.E. 2d 870, 871 (1971) ; 1 Strong, N. C. Index 2d, Appeal and Error, § 42 at p. 185.

The findings of fact support the trial court’s conclusions of law and adjudication that plaintiff is entitled to recover from appellants the amounts provided in the judgment.

Affirmed.

Judges Vaughn and Arnold concur.