Opinion
Filed 23 March, 1955.
Judgments 27a — Upon a motion to vacate an order on (the ground that it was entered without notice G.S. 1-582, it is the duty of the court upon request to find the facts not only in respect to the grounds upon which the motion is made but as to the meritorious defense the rules as to the setting aside a judgment for surprise and excusable neglect under G.S. 1-220, being applicable.
APPEAL by respondent H. L. Sprinkle from Fountain, S.J., at September Civil Term 1954, of ROCKINGHAM.
P. T. Stiers for plaintiffs, appellees.
Rufus W. Reynolds for defendant, appellant.
BARNHILL, C.J., took no part in the consideration and decision of this case.
Special proceeding for partition of certain lands in Rockingham County, North Carolina, of which petitioners and defendants were tenants in common, heard upon duly verified motion of defendant H. L. Sprinkle, dated 20 February, 1954, entered in the cause, to set aside judgment and order of Gwyn, J., dated 16 December, 1953, rejecting claim of H. L. Sprinkle for reimbursement of expenses incurred in connection with the sale of the property, upon grounds of mistake, inadvertence, surprise or excusable neglect, and that he has a meritorious defense, and that the order was made out of court and without notice.
The motion came on for hearing before the Judge presiding at September Civil Term 1954, who "having heard affidavits by the movant and oral evidence of the plaintiffs, and being of the opinion that the evidence is insufficient to show any inadvertence on the part of the court in entering said judgment and order dated December 16, 1953, and . . . to show that any false representations were made by counsel for the plaintiffs and the commissioners to the court, and . . . therefore being of the opinion that said motion should be denied," entered order, dated 7 September, 1954, denying the motion.
Defendant, H. L. Sprinkle, requested the court to find the facts, including those specified in detail. The request was denied, — and H. L. Sprinkle excepted. His exception No. 1.
Defendant H. L. Sprinkle thereupon moved that the order of 7 September, 1954, be set aside for irregularities and errors committed during the hearing and for lack of facts as found, and for that the facts found will not support the order. The motion was overruled and defendant H. L. Sprinkle excepted. His exception No. 2.
And to the order of 7 September, 1954, and to the signing of it, defendant H. L. Sprinkle excepts, his exception No. 3, and appeals to Supreme Court and assigns error.
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, 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., took no part in the consideration and decision of this case.