Mcleod v. Gooch

• Decision Date: 30 April 1913
• Citation: 78 S.E. 4,162 N.C. 122
• Parties: McLEOD. v. GOOCH et al.
• Court: North Carolina Supreme Court

(162 N.C. 122)

78 S.E. 4

McLEOD.

v.GOOCH et al.

Supreme Court of North Carolina.

April 30, 1913.

1. Appeal and Error (§ 934^*) — Presumptions.

In the absence of findings, the Supreme Court must presume that the trial judge found such facts as would support his ruling, since it does not presume error on the part of the trial court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.*]

2. Appeal and Error (§ 265*)—Exceptions —Necessity.

An assignment of error in refusing to make fact findings must be based upon an exception duly taken at trial.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. § 265.*]

3. Judgment (§ 363^2-*)—Vacation—Grounds —Excusable Neglect.

Where defendant was notified that the term of court might end before the 27th and if the court adjourned before the 27th a motion would be disposed of before adjournment, defendant's counsel was not entitled to rely absolutely upon an agreement by plaintiff's counsel to have the hearing on the 27th "if convenient to the judge, " and hence could not have a judgment, entered on a hearing before that date, set aside upon the ground of surprise, inadvertence, and excusable neglect.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 705; Dec. Dig. § 363.*]

4. Judgment (§ 509*)—Res Judicata.

A proceeding to set aside a judgment on the ground of excusable neglect and inadvertence will not bar a subsequent proceeding to set it aside upon the ground of irregularity.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 998; Dec. Dig. § 569.*]

Appeal from Superior Court, Granville County; Peebles, Judge.

Action by Neill McLeod against J. W. Gooch and others. From an order denying a motion to set aside a judgment for defendants, plaintiff appeals. Affirmed.

This is a motion to set aside a judgment upon the ground of "mistake, inadvertence, surprise or excusable neglect, " under Revisal, § 513. The facts are that plaintiff brought this action to November term, 1910, for the recovery of a planing machine with its outfit, alleged to be unlawfully detained by defendant He filed his complaint January 10, 1911, and defendant answered February 27. 1911. The cause was continued until April term, 1912, when, plaintiff having failed to appear, the court submitted the issues to the jury, which were answered as follows: "(1) Is the plaintiff the owner of the property described in the complaint? Answer: No. (2) What was the value of the milling machinery, planer, and other apparatus at the time of the seizure by the sheriff in the claim and delivery proceedings in this action? Answer: $275"—and entered judgment for the defendant upon the verdict. Plaintiff moved to set aside the verdict and judgment upon the ground of mistake, surprise, inadvertence, fraud, and excusable neglect, which motion the court refused, and plaintiff assigned the following errors: "(1) To the signing of the judgment denying the motion to set aside the judgment rendered at April term, 1912, and the judgment and order rendered at November term, 1912. (2) Plaintiff excepts to the failure to set aside the judgment rendered at April term, 1912, for the reason that said judgment was void and absolutely null, since defendant's answer was not verified as required by statute. (3) The plaintiff excepts to the judgment on the ground that the court failed and refused to find the facts and set them out in the case."

Baggett & Baggett, of Lillington, and D. G. Brummitt, of Oxford, for appellant.

Graham & Devin, of Oxford, for appellees.

WALKER, J. [1] There are no findings of fact in the record as to excusable neglect. The judge, at the hearing, merely denied the motion. In the absence of the findings, we must presume that the judge found such facts as would support his ruling, for we do not presume error, but the appellant must show it; the burden of doing so being upon him. If he wished to review the decision of the court, he should, in apt time, have requested a finding of the facts. Albertson v. Terry, 108 N. C. 75, 12 S. E. 892; Hardware Co. v. Buhman, 159 N. C. 511, 75 S. E. 731. This is the well-settled practice.

The plaintiff, it is true, states in one of his assignments of error that such a request was made and refused; but an assignment of error, as we have repeatedly held, must be based upon an exception duly taken during the trial of an action or the hearing of a motion, and there is no such exception, and nothing in the record to show that the request was made and refused. "The preparation of the assignment of error is the work of the attorney for the appellant, and is not a part of the case on appeal, and its office is to group the exceptions noted in the case on appeal, and if there is an assignment of error not supported by an exception, it will be disregarded." Worley v. Logging Co., 157 N. C. 490, 73 S. E. 107. We have, nevertheless, examined the affidavits filed by the plaintiff in support of his motion, and find nothing stated therein which tends to show a case of excusable neglect. The case was pending in the court nearly two years before the trial was had and the judgment rendered at April term, 1912, and no steps were ever taken to ascertain when it would be called for trial. It seems that plaintiff and his counsel relied on the clerk or some one else to notify them of the time; but there was no legal obligation resting upon any one to do so, and no request was made to the clerk or to opposing counsel to give the information, so far as appears, and no promise made by them, or either of them, to give seasonable notice of the time when the case would be reached in regular order on the calendar.

The motion was first made before Judge Whedbee, to set aside the judgment; but plaintiff failed to appear at the time appointed for the hearing of the same, and he then moved before Judge Peebles to set aside the judgment and the former order of Judge Whedbee denying the first motion. The judgment was rendered at April term, 1912, motion to set it aside made July 10, 1912, nearly three months afterwards, and July term, 1912, set for the hearing. The defendant did not appear in person or by counsel at that term; but the court allowed plaintiff time to file additional affidavits, and Tuesday of thenext (November) term was set as the day for hearing the motion. It appears that plaintiff's counsel, by letter, of November 1, 1912, requested of defendant's counsel that...