Jones v. . Swepson , 79 N.C. 510 ( 1878 )

This is an application to the Judge below to vacate a judgment under C. C. P., sec. 133, for excusable neglect. As the affidavit of the defendant is contradicted in some material particulars by the affidavit of the plaintiff, it was the duty of the Judge to find and set forth upon the record the facts upon which he grounded his judgment. Whether a given state of facts constitutes excusable neglect is a question of law. This Court has no jurisdiction to find the facts from the testimony contained in the affidavits when they (511) are conflicting. That is the peculiar province of the Court below. This is as well settled as any proposition can be, by many concurring decisions of this Court. Clegg v. Soap Stone Co., 66 N.C. 391; Hudgins v.White, 65 N.C. 393; Powell v. Weith, 66 N.C. 423.

Reversed.

Cited: Ashby v. Page, 108 N.C. 8; Finlayson v. Accident Co.,109 N.C. 199.