Brown v. Brown , 19 N.C. App. 393 ( 1973 )

MOEEIS, Judge.

Plaintiff filed a motion to dismiss the appeal because of defendant’s failure to comply with Eule 19(d). We are of the opinion that under the circumstances and the procedure followed in this matter, the defendant was not aware that he was narrating evidence but was narrating, in the only form possible, the actual proceedings at the hearing. The motion is, therefore, denied.

At the proceeding of 16 February 1973, the court ordered stricken from the record certain letters and statements not sworn, to and left in the record certain letters and statements not sworn to. He examined orders which had been prepared and handed up to the presiding judge in previous hearings but not signed and not a part of the record. Although no one was sworn at the hearing, the record indicates there was testimony from counsel for the parties and from the parties themselves.

The judgment recites: “The case was tried upon affidavits pursuant to an order of court dated May _, 1972, to which neither party objected.” We find no such order in the record. The judgment further recites: “The court, having considered all of the competent evidence, including the affidavits filed by the plaintiff and the defendant and including the complaint of the plaintiff and the answer of the defendant, each of which was accepted as an affidavit and having heard the statements and arguments of counsel to the parties, makes the following findings of fact.”:

It is clear from the record that plaintiff’s complaint was not verified; and, therefore, could not be considered as an affidavit. It is also clear from the record that the court did not strike all letters and statements not under oath. The court states that he considered statements of counsel. It is obvious that some of the material findings of fact could not be based on competent evidence and could not support the judgment.

The matter must, therefore, be remanded for further proceedings and the judgment vacated.

Judgment vacated and cause remanded.

Judges Campbell and Parker concur.