(After stating the case.) It was the right of •the defendants to apply, and within the power of the court below, in its discretion and upon such terms as might be .just at any time within a year, to set aside the judgment against them, as taken through mistake, inadvertence, surprise or excusable neglect. ‘C/C. P., § 133. And it is settled that if the judgment were not relievable under the said section of the Code, and its enforcement became inequitable for any reason of which a court of equity would take notice, the superior court under our present system exercising the 'powers of a court of'law and court of equity, can and will set ■aside a judgment by default at a subsequent term, and allow a defence to be made of which a party has been deprived by the fraud of the other party, taking care, however, to require the party so relieved to secure the other party in such sum as he may recover together with his costs. Jarman v. Saunters, 64 N. C., 367.
Now the defendants’ motion being made within a year .after judgment, it was competent to them to be relieved and allowed to defend the action under the section of the Code *243aforesaid, or under the equitable jurisdiction of the superior court, if upon an investigation of the facts it should appear that the judgment was obtained within the provisions of C. C. P., § 133, or by the fraud of the plaintiff. As to the merits of the case we do not express any opinion, and are to be understood only as declaring the legal rights of the defendants on the basis of the truth of their allegation about which we know nothing.
On the hearing of the motion, the record sent up for our consideration shows that the judge below made but two findings, one of which was “that the defendants did not fail to employ counsel in their action in consequence of any fraud practiced on them by the plaintiff.” ■ This finding is defective, in that it does not ascertain and separately set forth the facts which, as a matter of law, amount to fraud on the part of the plaintiff, or do not; and through inadvertence on the-part of His Honor, no finding is made as to the allegation that defendants filed their answer with the consent of Mr. Moore, plaintiff’s attorney, and that plaintiff afterwards employed other counsel and through them had the answer on file excluded and took the judgment by default. His Honor not having found the facts we cannot declare the law nor decide for or against his conclusions of law. Powell v. Weith, 66 N. C., 423; Clegg v. Soap Stone Co., Ibid., 391.
There is error. Let this be certified to the end that the defendants may on their motion or petition have the cO'ur't to find the facts andtaake its judgment thereon, from which if so advised they may appeal to this court.
Per Curiam. Error.