Fox v. Miller , 8 N.C. App. 29 ( 1970 )

HedRick, J.

The appellants bring forward the sole question of whether the judgment entered by the court made sufficient findings of fact upon which to base the conclusions of law and sustain the judgment entered. An exception to a judgment rendered in a trial by the court, without exception to the evidence presented or the findings of fact made by the court, presents the sole question of whether the facts found support the judgment. Best v. Garris, 211 N.C. 305, 190 S.E. 221 (1937). Even in the absence of exceptions to the findings of fact, the appeal itself constitutes an exception to the judgment and presents the question of whether the facts found support the judgment. 1 Strong, North Carolina Index 2d, Appeal and Error, § 57.

G.S. 1-185, which was in effect at the time this case was decided and which has been replaced by G.S. 1A-1, Rule 52, Rules of Civil Procedure, required that “Upon trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately.” Under this statute there were three things which the judge was required to do when jury trial was waived: (1) He had to find the facts on all issues of fact joined on the pleadings; (2) he had to declare the conclusions of law which arose upon the facts found; and (3) he had to enter judgment accordingly. Woodard v. Mordecai, 234 N.C. 463, 67 S.E. 2d 639 (1951).

The judgment entered by the court below in the present case contains no findings of fact upon which the judge could base his conclusions of law. The judgment merely sets forth, as findings of fact, the contentions of the parties and attempts to review the evidence offered at the trial. We are of the opinion that the court below has not sufficiently complied with the requirements of G.S. 1-185 in that the court’s decision does not contain a statement of the facts found. “Where a case is left by consent to be tried both as to the facts and the law by the court, and it fails to find the material facts, the case may be remanded in order that such facts may be so found. Knott v. Taylor, 96 N.C. 553; Trust Co. v. Transit Lines, 198 N.C. 675.” Shore v. Bank, 207 N.C. 798, 178 S.E. 572 (1935).

In the absence of sufficient and' definite findings of fact to support the judgment, the judgment is vacated and the case is remanded to the District Court of Caldwell County for further hearing, findings, conclusions and decision.

Vacated and remanded.

Beitt and Paeicbe, JJ., concur.