190 S.E.2d 299 | N.C. Ct. App. | 1972
James H. LITTLEJOHN et al.
v.
J. Austin HAMRICK et al.
Court of Appeals of North Carolina.
*301 Robert G. Summey, Forest City, for plaintiff appellees.
George R. Morrow, Forest City, and James H. Burwell, Jr., Rutherfordton, for defendant appellants.
CAMPBELL, Judge.
We note that this case was docketed late, but a petition for certiorari in lieu of an appeal has been granted and therefore we will consider the appeal on its merits rather than dismissing it.
The judgment entered in this case does not comply with Rule 52 of the Rules of Civil Procedure (G.S. § 1A-1, Rule 52). This Rule provides:
"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."
As stated in Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149 (1971):
"In cases in which the trial court passes on the facts, the court is required `"to do three things in writing: (1) To find the facts on all issues of fact joined on the pleadings; (2) to declare the conclusions of law arising on the facts found; and (3) to enter judgment accordingly.". . . Where facts are found by the court, if supported by competent evidence, such facts are as conclusive as the verdict of a jury.'"
In the instant case issues of fact were joined on the pleadings which the stipulations do not cover. For instance, the reply filed by the plaintiffs raised the question of the validity of the amendment to the restrictions. The stipulations do not pertain to this issue, and there is nothing in the judgment determining it.
There was no evidence introduced, and the stipulations being insufficient to support all of the necessary findings of fact, it is necessary that this case be remanded so that proper findings of fact can be entered based upon sufficient evidence.
Not only does the record in this case contain insufficient evidence to support proper findings of fact, but the facts found do not support the conclusions of law made, and the judgment itself is not supported by findings of fact. For example, the judgment orders all defendants indiscriminately to remove all house trailers or mobile homes from the subdivision with the exception of those on Lot 27. There is no finding that all of the defendants own house trailers or mobile homes. Yet a defendant who does not own a house trailer or mobile home is required to remove them from the subdivision whether such defendant does or does not have an interest in such house trailer or mobile home.
The restrictions referred only to house trailers and yet the judgment, without any evidence or finding of fact, treats house trailers as synonymous with mobile homes. This may or may not be true.
Since this case must go back to the trial court for a new trial, we will refrain from further comment on the judgment entered.
New trial.
MALLARD and BRITT, JJ., concur.
