Albertson v. . Terry

12 S.E. 892, 108 N.C. 75

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Merkimon, C. J.

after stating the case: It is not the province of this Court in this and like cases to review the findings of fact by the Court below. It can only decide upon appeal that the facts found do or do not constitute “mistake, inadvertence, surprise or excusable neglectit cannot go beyond that and decide that the Court ought or ought not to allow or disallow a motion founded upon such cause to set aside a judgment, order or other proceeding, as allowed by the statute (The Code, § 274). This statute vests the discretion to set aside a judgment for such cause in the Judge before whom the motion is made, and his exercise of discretion is not reviewable by this Court. Branch v. Walker, 92 N. C., 87; Foley v. Blank, id., 476.

It does not appear that the Court refused to allow the motion to set aside the judgment complained of, upon the ground that in no view of the facts could they constitute mistake, surprise, inadvertence or excusable neglect. So far as appears, it may, as it might do, have denied the motion in the exercise of its discretion, in which case this Court could not review its action. The burden is on the appellants to sbow error If they fail to do so, the judgment should be affirmed. The presumption is in favor of its correctness and validity. \

If the appellants intended to assign as error that the Court based its order upon some particular erroneous ground they should have requested it to specify the ground of its decision, and the Court having done so they should have assigned error in that respect. If the Court had, refused in such case to specify the ground, such refusal would have been erroneous.

Affirmed.