Holcomb v. Holcomb
| Decision Date | 10 November 1926 |
| Citation | 135 S.E. 287 |
| Parties | HOLCOMB v. HOLCOMB |
| Court | North Carolina Supreme Court |
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Appeal from Superior Court, Surry County; Lyon, Judge.
Action by Mrs. Ella G. Holcomb against W. H. Holcomb. Motion to set aside a judgment by default final denied, and defendant appeals. Affirmed.
W. F. Carter, of Mt. Airy, for appellant.
W. L. Reece, of Dobson, and J. H. Folger, of Mt. Airy, for appellee.
STACY, C. J. [1-3] This is an appeal from a refusal to set aside a judgment by defaultfinal on the ground of "mistake, inadvertence, surprise or excusable neglect, " under C. S. § 600. The judge, not being requested to do so, found no facts upon which he based his ruling. Carter v. Rountree, 109 N. C. 29, 13 S. E. 716. In the absence of such finding, it is presumed that the judge, upon proper evidence, found facts sufficient to support his judgment. McLeod v. Gooch, 162 N. C. 122, 78 S. E. 4. Hence there is nothing for us to review. Osborn v. Leach, 133 N. C. 428, 45 S. E. 783. "We do not consider affidavits for the purpose of finding the facts ourselves in motions of this sort." Gardiner v. May, 172 N. C. 192, 89 S. E. 955. It would have been error for the judge not to have found the facts, had he been requested to do so. McLeod v. Gooch, supra. But he is not required to make such finding in the absence of a request by some of the parties. Lbr. Co. v. Buhmann, 160 N. C. 385, 75 S. E. 1008. See Norton v. McLaurin, 125 N. C. 185, 34 S. E. 269, for full discussion of the subject.
Affirmed.
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