Coleman v. . Hood, Comr. of Banks

181 S.E. 280, 208 N.C. 430, 1935 N.C. LEXIS 439

Opinion

Stagy, C. J.

The trial court was in error in striking out the 20th finding of fact of the referee for want of evidence to sustain it. This was doubtless an inadvertence, as the finding is fully supported by the record, at least inferentially, if not by direct proof. And in ruling on defendant’s exception to the 33d finding of fact, the court evidently overlooked the purpose for which the plaintiff introduced the trustee’s reports in evidence, to wit, for attack. This was likewise an inadvertence.

With the facts thus left in doubt, and perhaps with somewhat contradictory findings, the record is not in satisfactory shape or condition for us to pass upon the questions sought to be presented. Hence, to insure consistency, the rulings upon defendant’s exceptions modifying the referee’s report will be stricken out and the cause remanded for further proceedings as to justice appertains and the rights of the parties may require.

Error and remanded.