Nelson v. Simpkins , 240 N.C. 406 ( 1954 )

WiNBORNB, J.

The questions involved on this appeal, as stated in brief of appellants, are these: Did the court err:

(1) “In entering the order denying motion of defendants to set aside the order of reinstatement of January 31,1951 ?

(2) “In confirming the order entered on January 31, 1951, setting aside the judgment of nonsuit and reinstating this cause of action?

(3) “In setting aside and striking from the record the judgment of nonsuit entered in this action on October 2, 1950?

(4) “In reinstating this cause of action and ordering it to be placed upon the civil docket for trial on its merits ? and

(5) “In refusing to find the facts tendered in writing by the defendants under date of November 4, 1953 ?”

Careful consideration of the record on appeal leads to the decision that the facts found in the judgment from which appeal is taken are sufficient to support the conclusion there reached. And there is no exception to any finding of fact so made.

Exception to the judgment, and to the conclusions of law set out in the judgment, present only questions whether facts found are sufficient to support the judgment, that is, whether the court correctly applied the law to the facts found. Such exceptions are insufficient to bring up for review the findings of fact or the evidence upon which they are based. And when the judgment entered is supported by the finding of fact, it will be affirmed. See, among numerous other cases, Roach v. Pritchett, 228 N.C. 147, 47 S.E. 2d 20.

Moreover, if it be conceded that the order of 31 January, 1951, was entered without notice, and without waiver of notice, the whole matter was before the Honorable J. A. Rousseau, Judge presiding over the Civil Term of Mecklenburg Superior Court upon the motion of defendants entered upon general appearance, pursuant to notice to attorney of recc for plaintiff dated 28 November, 1953.

Defendants were contending that the order of 31 January, 1951, made upon motion of plaintiff was without force and effect, and that, hence, the motion, answered by defendants 21 February, 1951, remained as if no action had been taken upon it. Therefore if the order of 31 January, 1951, were set aside, consideration of the motion, as answered by defendants, would still be for disposition.

Furthermore, defendants concede in their brief that “plaintiff attempted to place the case on the calendar for trial at the November 1953 Term of Mecklenburg Superior Court.” And plaintiff, in his brief, says that “on Friday, October 23, 1953, the Calendar Committee for the Meck-lenburg Bar Association set this case as the first case for trial at the November 2, 1953 Term of Civil Court for Mecklenburg County.” "Whether right or wrong, the judgment as of nonsuit had been set aside, and tbe ease was properly subject to be calendared for trial at term time when defendants’ motion was made and beard. And tbe Judge presiding having taken general jurisdiction over tbe case, it will be assumed tbat be acted with authority. Thus tbe whole case was before tbe court. And if tbe Judge erred in affirming tbe order of 31 January, 1951, be found sufficient facts to support bis own action in setting aside tbe judgment as of nonsuit and reinstating tbe case.

Lastly, since tbe evidence before tbe Court is not contained in tbe record on appeal, error is not made to appear in tbe matter to which tbe fifth question above stated relates.

The judgment below is

Affirmed.