Rutledge v. . Fitzgerald , 197 N.C. 163 ( 1929 )

The following judgment was rendered in the court below: "This cause coming on before his Honor, John M. Oglesby, presiding at the September Term, 1928, Superior Court of Mecklenburg County, on a motion to set aside the judgment obtained on 19 June, 1928, by John W. Fitzgerald, against J. G. Rutledge, Jr., and W. R. Rutledge, and the same being heard: It is hereby ordered, decreed and adjudged, that the said judgment be, and the same is hereby set aside in the discretion of the court on the ground of excusable neglect and surprise, and also for meritorious cause shown to the court, and that the judgment of nonsuit rendered therein also be set aside on account of excusable neglect and surprise, and that the said judgment herein is ordered to be canceled and stricken from the docket, that the said original cause be restored to the trial docket for trial."

The defendant excepted and assigned error to the judgment rendered and appealed to the Supreme Court. The defendant did not request the court below to find the facts upon which the rulings of the court below were based. In the absence of such finding, it is presumed that the court below, upon proper evidence, found facts sufficient to support the judgment. The whole matter is fully discussed and decisions cited in Holcomb v. Holcomb, 192 N.C. 504;Helderman v. Mills Co., 192 N.C. 626. See Lumber Co. v. Anderson,196 N.C. 474; Realty Corp. v. Fisher, 196 N.C. 503;Coach Co. v. Griffin, 196 N.C. 559. The judgment of the court below is

Affirmed.