Tyndall v. Triangle Mobile Homes, Inc.

264 N.C. 467 | N.C. | 1965

RodmaN, J.

The motion to vacate the judgment was based on factual allegations which, if established, would compel the court to grant defendant an opportunity to be heard on the question of liability to plaintiff. Plaintiff’s denial of the facts stated in defendant’s motion presented a question of fact to be decided by the court. Menzel v. Menzel, 250 N.C. 649, 110 S.E. 2d 333; Harrington v. Rice, 245 N.C. 640, 97 S.E. 2d 239; Banks v. Lane, 171 N.C. 505, 88 S.E. 754; Simmons v. Box Co., 148 N.C. 344, 62 S.E. 435.

Both the judge presiding over the Municipal-County Court and the judge presiding over the Superior Court made factual conclusions; neither made evidentiary findings to support their conclusions. Defendant assigns as error the failure of the Superior Court to make specific findings of fact. This assignment of error is not supported by an exception. An assignment of error not supported by an exception will not be considered on appeal. Wilson v. Wilson, 263 N.C. 88, 138 S.E. 2d 827; Rice v. Rice, 259 N.C. 171, 130 S.E. 2d 41; Cratch v. Taylor, 256 N.C. 462, 124 S.E. 2d 124; Holden v. Holden, 245 N.C. 1, 95 S.E. 2d 118.

Unless requested to do so, a court called upon to decide a controversy is not required to make specific findings of fact. If the parties desire specific factual findings to support factual conclusions, they should make the request and except to the failure to find facts. Logan v. Sprinkle, 256 N.C. 41, 123 S.E. 2d 209; St. George v. Hanson, 239 N.C. 259, 78 S.E. 2d 885; Stone v. Comrs. of Stoneville, 210 N.C. 226, 186 S.E. 342.

In the absence of specific findings, it will be presumed that the court found facts supporting its factual conclusions. Heating Co. v. Realty Co., 263 N.C. 641, 140 S.E. 2d 330.

The general manager of a corporation is within the class named in G.S. 1-97(1). Service of process on a named corporation by delivering a copy of the summons to its managing officer is valid service. Proof of service of process may be established by the return of the sheriff or other proper officer. G.S. 1-102. “[H]is return thereon that the same has been executed is sufficient evidence of its service.” G.S. 1-592.

The return on the summons and the recitals in the judgment that process had been served on defendant by delivering a copy to L. W. Powell, its general manager, sufficed prima facie to show valid service. Lumber Co. v. Sewing Machine Corp., 233 N.C. 407, 64 S.E. 2d 415; Sandoval Zink Co. v. Hale, 133 Ill. App. 196. Defendant had the burden of repelling the prima facie case made by the sheriff’s return. Harrington v. Rice, supra; Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802.

In addition to the statutory presumptions supporting the validity of service, plaintiff’s evidence tended to show that defendant owned and listed property for taxation in Greensboro in the spring of 1964, that this property was seized by the sheriff in the summer of 1964 under an execution issued in this cause. These facts tend to contradict defendant’s assertion that it had ceased to do business and had no property in Guilford County subsequent to January 1964. Additionally, there was a sworn statement by plaintiff that it did business with the named defendant, and not with Mobile Homes of Greensboro, Inc., as defendant contends; that it communicated with defendant at the address shown in the telephone directory, and by mail addressed to it at 3005 High Point Road, Greensboro.

The judgment of the Superior Court denying defendant’s motion to vacate the judgment rendered by the Municipal-County Court is

Affirmed.