Rutledge v. Fitzgerald, 197 N.C. 163 (1929)

May 1, 1929 · Supreme Court of North Carolina
197 N.C. 163
J. G. RUTLEDGE, Jr. v. JOHN W. FITZGERALD

J. G. RUTLEDGE, Jr. v. JOHN W. FITZGERALD.

(Filed 1 May, 1929.)

Appeal and Error J a — Findings of fact presumed correct on appeal.

Where a judgment of nonsuit has been granted, and thereafter the trial judge has restored the cause to the docket upon the ground of excusable neglect and a meritorious defense, the appellant must aptly request the trial court to find the facts upon which the judgment is based, and when this has not been done, and they do not appear of record, it will be presumed that they support the judgment rendered and it will be affirmed on appeal.

Appeal by defendant from Oglesby, J., at September Term, 1928, of MeckleNbueg.

Affirmed.

The following judgment was rendered in the court below: “This cause coming on before his Honor, John M. Oglesby, presiding at the September Term, 1928, Superior Court of Mecklenburg County, on a *164motion to set aside the judgment obtained on 19 June, 1928, by John "W. Fitzgerald, against J. Gr. Rutledge, Jr., and W. R. Rutledge, and the same being heard: It is hereby ordered, decreed and adjudged, that the said judgment be, and the same is hereby set aside in the discretion of the court on the ground of excusable neglect and surprise, and also for meritorious cause shown to the court, and that the judgment of nonsuit rendered therein also be set aside on account of excusable neglect and surprise, and that the said judgment herein is ordered to be canceled and stricken from the docket, that the said' original cause be restored to the trial docket for trial.”

The defendant excepted and assigned error to the judgment rendered and appealed to the Supreme Court.

John G. Carpenter for plaintiff.

Jimison & Abernathy for defendant.

Per Curiam.

The defendant did not request the court below to find the facts upon which the rulings of the court below were based. In the absence of such finding, it is presumed that the court below, upon proper evidence, found facts sufficient to support the judgment. The whole matter is fully discussed and decisions cited in Holcomb v. Holcomb, 192 N. C., 504; Helderman v. Mills Co., 192 N. C., 626. See Lumber Co. v. Anderson, 196 N. C., 474; Realty Corp. v. Fisher, 196 N. C., 503; Coach Co. v. Griffin, 196 N. C., 559. The judgment of the court below is

Affirmed.