Sprinkle v. Sprinkle

86 S.E.2d 422, 241 N.C. 713, 1955 N.C. LEXIS 442

Opinion

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. '