86 S.E.2d 422 | N.C. | 1955
J. T. SPRINKLE and wife, Lula Sprinkle; Mrs. Minnie V. Pettigrew (widow); B. F. Sprinkle (unmarried); R. L. Sprinkle and wife, Lillian Sprinkle, Philip E. Sprinkle and wife, Margaret Sprinkle; Mrs. Juanita Kimsey (widow); Reginald F. Sprinkle and wife, Annie Young Sprinkle,
v.
H. L. SPRINKLE and wife, Olie Sprinkle, and H. C. Sprinkle and wife, Sibil Sprinkle; Philip E. Sprinkle and Benjamin F. Sprinkle, Executors of the Estate of Ida A. Sprinkle, deceased.
Supreme Court of North Carolina.
*423 P. T. Stiers, Reidsville, for plaintiffs-appellees.
Rufus W. Reynolds, Greensboro, for defendant-appellant.
WINBORNE, Justice.
Decisions of this Court hold that when a Judge of Superior Court hears a motion to set aside a judgment for mistake, surprise or excusable neglect, G.S. § 1-220, it is his duty, upon request so to do, to find the facts not only in respect to the grounds on which the motion is made, but as to meritorious defense. Failure to do so is error. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287; McLeod v. Gooch, *424 162 N.C. 122, 78 S.E. 4. See also Parnell v. Ivey, 213 N.C. 644, 197 S.E. 128.
The same rule would apply to hearing on motion to vacate an order for reason that it was made without notice. G.S. § 1-582.
Hence the court below erred in declining to find the facts in these respects, having been requested so to do.
The cause will be remanded for further proceedings as to right and justice appertains, and as the law provides.
Error and remanded.
BARNHILL, C. J., and DEVIN, J., took no part in the consideration and decision of this case.
