Radeker v. Royal Pines Park, Inc., 207 N.C. 209 (1934)

Oct. 10, 1934 · Supreme Court of North Carolina

207 N.C. 209

W. SCOTT RADEKER v. ROYAL PINES PARK, INC., and MARGUERITTE JACKSON.

(Filed 10 October, 1934.)

Judgments K lb — It will be presumed on appeal that findings upon which judgment is set aside under G. S., 600, are supported by evidence.

Where no evidence appears in the case on appeal from an order setting-aside a judgment for surprise and excusable neglect under C. S., 600, it will be presumed that the findings of fact are based upon sufficient evidence in the absence of exceptions to the findings, and the order will be affirmed where the findings sustain the court’s holding that movants have shown excusable neglect and meritorious defense. As to whether the pleadings, judgment sought to be set aside, and the record incident thereto, and the motion and affidavit of movants may be treated as evidence, qwmre?

MotioN to set aside a judgment, beard before Pless, J., at June Term, 1934, of Buncombe.

Affirmed.

Tbis was a motion made before tbe general county court of Buncombe by tbe defendant Royal Pines Park, Inc., and intervenors Louis M. Bourne, Haywood Parker and Jobn DuBose, under C. S., 600, to set aside a judgment by default final rendered in said court in tbe above entitled cause on 19 December, 1932. From judgment granting tbe motion tbe plaintiff appealed to tbe Superior Court, and from judgment there affirming tbe court below, appealed to tbis Court, assigning errors.

Weaver & Miller for appellant.

Bourne, Parker, Bernard & DuBo'se for appellees.

Pee CuRiam.

Tbe judge of tbe general county court of Buncombe, “after bearing evidence for plaintiff and movants, and .argument of counsel,” found tbe facts, and upon tbe facts so found held, “in its discretion and as a matter of law, . . . that tbe movants have shown excusable neglect and a meritorious defense,” and adjudged that tbe default judgment and tbe proceedings pursuant thereto', be “declared null and void and set aside.”

No evidence appears in tbe case on appeal, unless tbe pleadings, tbe judgment sought to be set aside and tbe record incident thereto, and tbe motion and affidavit of tbe movants be treated as evidence. If these be so treated, they furnish sufficient basis for tbe findings of fact. If they be not so treated, then, in tbe absence of tbe evidence from tbe case on appeal, tbe findings of fact are presumed to be based upon sufficient evidence. And withal there are no exceptions to tbe findings of facts. These findings are final and binding upon tbis Court.

Tbe findings of fact fully sustain bis Honor’s bolding that tbe movants have shown excusable neglect and meritorious defense. In no view of tbe case, therefore, should tbe judgment be reversed. Abbitt v. Gregory, 195 N. C., 203; Bank v. Duke, 187 N. C., 386; Weil v. Woodard, 104 N. C., 94.

Affirmed.