In Re the Sale of Land of Warrick , 1 N.C. App. 387 ( 1968 )

161 S.E.2d 630 (1968) 1 N.C. App. 387

In the Matter of the Sale of Land of Paul Avery WARRICK and wife, Shirley G. Warrick, under foreclosure by Joseph B. Chambliss, Substitute Trustee.

No. 68SC119.

Court of Appeals of North Carolina.

June 12, 1968.

Hubert B. Hulse, Goldsboro, for respondent appellants.

Henson P. Barnes, Goldsboro, for petitioner appellee.

MALLARD, Chief Judge.

Respondents assign as error the finding by the Superior Court that the writ of assistance issued by the Clerk of the Superior Court of Wayne County should be affirmed and contend that the signing of the judgment allowing the writ constitutes error.

G.S. § 45-21.29(k), prior to its amendment by Chapter 979, Session Laws of 1967, controls the disposition of this case. Prior to its amendment, it provided that in proper cases the Clerk of the Superior Court of the county within which a foreclosure sale is held has the authority to issue a writ of assistance. Application for the writ may be made by the mortgagee, the trustee named in such deed of trust, any substitute trustee, or the purchaser of the property, provided he has paid the purchase price.

The evidence in this case is not before us, and when the evidence is not in the record, it will be presumed that there was sufficient evidence to support the findings of fact necessary to support the judgment. 1 Strong, N.C. Index 2d, Appeal & Error, §§ 28 and 42.

The judgment of Judge Cowper in the Superior Court finds "as a fact that the writ of assistance issued by the Clerk of the Superior Court of Wayne County, North Carolina, should be affirmed."

Respondents except to this "finding of fact," but since the evidence is not before us, we must assume that there was competent evidence heard by the court to so find. The judgment of Judge Cowper recites that he heard evidence.

The respondents did not object to the finding by the Clerk of the Superior Court. When he found that the respondents were in the wrongful possession of the premises described in the pleadings, they only excepted and objected to the entry of the order directing the writ of assistance to issue.

There was no request for findings of fact, and where there is no request for such findings, it will be presumed that the Court, on proper evidence, found facts sufficient to support its judgment. 1 Strong, N.C. Index 2d, Appeal and Error, § 28.

Respondents argue in their brief what "the record in this case fails to show," but they did not see fit to include in this record what the evidence revealed so that we might determine from the record whether the petitioner applicant made out his case as alleged. Respondents contend that he did not, but the Clerk of the Superior Court and the Judge of Superior Court have both found that he did. On the record before us, we find that the issuance of the writ of assistance was proper.

Both parties in their briefs have discussed matters outside of the record. In 1 Strong, N.C. Index 2d, Appeal & Error, § 42, we find that matters discussed in the brief outside the record will not be considered. In this same section of Strong's Index we find also that the Supreme Court can judicially know only what appears of record. We hold that the same rule also applies to this Court.

Affirmed.

BRITT and MORRIS, JJ., concur.