Holcomb v. . Holcomb

135 S.E. 287, 192 N.C. 504, 1926 N.C. LEXIS 334

• Court: Supreme Court of North Carolina
• Decided: November 10, 1926
• Status: Published

Opinion

Stacy, C. J.

This is an appeal from a refusal to set 'aside a judgment by default final on the ground of “mistake, inadvertence, surprise or excusable neglect,” under C. S., 600. The judge, not being requested to do so, found no facts upon which he based his ruling. Carter v. Rountree, 109 N. C., 29. In the absence of such finding, it is presumed that the judge, upon proper evidence, found facts sufficient to support his judgment. McLeod v. Gooch, 162 N. C., 122. Hence, there is nothing for us to review. Osborn v. Leach, 133 N. C., 428. “We do not consider affidavits for the purpose of finding facts ourselves in motions of this sort.” Gardiner v. May, 172 N. C., 192. It would have been error for the judge not to have found the facts, had he been requested to do so. McLeod v. Gooch, supra. But he is not required to make such finding in the absence of a request by some of the parties. Lumber Co. v. Buhmann, 160 N. C., 385. See Norton v. McLaurin, 125 N. C., 185, for full discussion of the subject.

Affirmed.