Radeker v. . Royal Pines Park, Inc. , 207 N.C. 209 ( 1934 )

This was a motion made before the general county court of Buncombe by the defendant Royal Pines Park, Inc., and intervenors Louis M. Bourne, Haywood Parker and John DuBose, under C. S., 600, to set aside a judgment by default final rendered in said court in the above entitled cause on 19 December, 1932. From judgment granting the motion the plaintiff appealed to the Superior Court, and from judgment there affirming the court below, appealed to this Court, assigning errors. The judge of the general county court of Buncombe, "after hearing evidence for plaintiff and movants, and argument of counsel," found the facts, and upon the facts so found held, "in its discretion and as a matter of law, . . . that the movants have shown excusable neglect and a meritorious defense," and adjudged that the default judgment and the proceedings pursuant thereto, be "declared null and void and set aside."

No evidence appears in the case on appeal, unless the pleadings, the judgment sought to be set aside and the record incident thereto, and the motion and affidavit of the movants be treated as evidence. If these be so treated, they furnish sufficient basis for the findings of fact. If they be not so treated, then, in the absence of the evidence from the case on appeal, the findings of fact are presumed to be based upon sufficient evidence. And withal there are no exceptions to the findings of facts. These findings are final and binding upon this Court.

The findings of fact fully sustain his Honor's holding that the movants have shown excusable neglect and meritorious defense. In no view of the case, therefore, should the judgment be reversed. Abbitt v. Gregory,195 N.C. 203; Bank v. Duke, 187 N.C. 386; Weil v. Woodard,104 N.C. 94.

Affirmed.