Sprinkle v. Sprinkle, 241 N.C. 713 (1955)

March 23, 1955 · Supreme Court of North Carolina

241 N.C. 713

J. T. SPRINKLE and Wife, LULA SPRINKLE; MRS. MINNIE V. PETTIGREW (Widow); B. F. SPRINKLE (Unmarried); R. L. SPRINKLE and Wife, LILLIAN SPRINKLE, PHILIP E. SPRINKLE and Wife, MARGARET SPRINKLE; MRS. JUANITA KIMSEY (Widow); REGINALD F. SPRINKLE and Wife, ANNIE YOUNG SPRINKLE, v. H. L. SPRINKLE and Wife, OLIE SPRINKLE, and H. C. SPRINKLE and Wife, SIBIL SPRINKLE; PHILIP E. SPRINKLE and BENJAMIN F. SPRINKLE, Executors of the Estate of IDA A. SPRINKLE, Deceased.

(Filed 23 March, 1955.)

Judgments § 27a—

Upon a motion to vacate an order on the ground that it was entered without notice, G.S. 1-582, it is the duty of the court upon request to find the facts not only in respect to the grounds upon which the motion is made, but as to the meritorious defense, the rules as to the setting aside a judgment for surprise and excusable neglect under G.S. 1-220, being applicable.

Barnhill, C. J., took no part in the consideration and decision of this case.

Appeal by respondent H. L. Sprinkle from Fountain, S. J., at September Civil Term 1954, of RockiNgiiam.

Special proceeding for partition of certain lands in Rockingham County, North Carolina, of which petitioners and defendants were tenants in common, heard upon duly verified motion of defendant H. L. Sprinkle, dated 20 February, 1954, entered in the cause, to set aside judgment and order of Gwyn, J., dated 16 December, 1953, rejecting claim of H. L. Sprinkle for reimbursement of expenses incurred in connection with the sale of the property, upon grounds of mistake, inadvertence, surprise or excusable neglect, and that he has a meritorious defense, and that the order was made out of court and without notice.

The motion came on for hearing before the Judge presiding at September Civil Term 1954, who “having heard affidavits by the movant and oral evidence of the plaintiffs, and being of the opinion that the evidence is insufficient to show any inadvertence on the part of the court in entering said judgment and order dated December 16, 1953, and ... to show that any false representations were made by counsel for the plaintiffs and the commissioners to the court, and . . . therefore being of the opinion that said motion should be denied,” entered order, dated 7 September, 1954, denying the motion.

Defendant, H. L. Sprinkle, requested the court to find the facts, including those specified in detail. The request was denied, — and H. L. Sprinkle excepted. His exception No. 1.

Defendant H. L. Sprinkle thereupon moved that the order of 7 September, 1954, be set aside for irregularities and errors committed during the hearing and for lack of facts as found, and for that the facts found will not support tbe order. Tbe motion was overruled and defendant H. L. Sprinkle excepted. His exception No. 2.

And to tbe order of 7 September, 1954, and to tbe signing of it, defendant H. L. Sprinkle excépts, bis exception No. 3, and appeals to Supreme Court and assigns error.

P. T. Stiers for plaintiffs, appellees.

Rufus W. Reynolds for defendant, appellant.

Winborne, J.

Decisions of tbis Court bold that wben a Judge of Superior Court bears a motion to set aside a judgment for mistake, surprise or excusable neglect, Gr.S. 1-220, it is bis duty, upon request so to do, to find tbe facts not only in respect to tbe grounds on wbicb tbe motion is made, but as to meritorious defense. Failure to do so is error. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287; McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4. See also Parnell v. Ivey, 213 N.C. 644, 197 S.E. 128.

Tbe same rule would apply to bearing on motion to vacate an order for reason that it was made without notice. G.S. 1-582.

Hence tbe court below erred in declining to find tbe facts in these respects, — having been requested so to do.

Tbe cause will be remanded for further proceedings as to right and justice appertains, and as tbe law provides.

Error and remanded.

BaRNHill, C. J., took no part in tbe consideration and decision of tbis case. '