Haiduven v. Cooper , 23 N.C. App. 67 ( 1974 )

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208 S.E.2d 223 (1974) 23 N.C. App. 67
Sarah C. HAIDUVEN
v.
Floyd W. COOPER.
No. 7420DC595.
Court of Appeals of North Carolina.
September 18, 1974.
*224 Dillard M. Powell, Cary, for plaintiff appellee.

Johnson, Poole & Crockett by Samuel H. Poole, Aberdeen, for defendant appellant.

PARKER, Judge.

The judgment filed against defendant on 10 September 1973 is not before us for review. No appeal was taken from that judgment, and "an appeal from an order denying relief under Rule 60(b) does not bring up for review the judgment from which relief is sought." 7 Moore's Federal Practice, § 60.30[1]. Thus, the only question presented by this appeal is the validity of the court's ruling made in the order appealed from, dated 18 March 1974, which denied defendant's motion for relief under Rule 60(b)(1).

In order to grant a motion under Rule 60(b)(1) to relieve a party from a final judgment on the ground of mistake, inadvertence, surprise, or excusable neglect, the *225 court must find both that defendant's neglect was excusable and that he had a meritorious defense. Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84 (1949). In the present case the judge did not find the facts upon which he based his ruling denying defendant's motion. Had he been requested to do so, it would have been error for the judge not to have found the facts, Sprinkle v. Sprinkle, 241 N.C. 713, 86 S.E.2d 422 (1955), but absent a request he was not required to do so. G.S. 1A-1, Rule 52(a)(2). In such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287 (1926).

The record before us does not show any request that the judge make findings of fact, and counsel for defendant stated on oral argument that no such request was made. Although the appellate court may inspect the pleadings to see if a meritorious defense is alleged, Sutherland v. McLean, 199 N.C. 345, 154 S.E. 662 (1930), when passing on the trial court's ruling on a motion of this sort we do not consider affidavits for the purpose of finding facts ourselves on the issue of excusable neglect. Holcomb v. Holcomb, supra.

The cases cited above were decided under former G.S. § 1-220, which has now been replaced by G.S. 1A-1, Rule 60(b)(1), but the principles announced still apply. Doxol Gas v. Barefoot, 10 N.C.App. 703, 179 S.E.2d 890 (1971). Appellant, who had the burden of showing error, has failed to do so.

Affirmed.

CAMPBELL and VAUGHN, JJ., concur.