Bundy v. Ayscue

169 S.E.2d 87 (1969)

5 N.C. App. 581

William W. BUNDY v. Will AYSCUE (Askew) and James R. Walker, Jr., Guardian Ad Litem.

No. 691SC185.

Court of Appeals of North Carolina.

August 13, 1969.

*89 Silas M. Whedbee and W. H. Oakey, Jr., Hertford, for plaintiff appellee.

James R. Walker, Jr., Weldon, for defendant appellant.

FRANK M. PARKER, Judge.

Defendant first assigns as error the denial of his motions for a continuance of the hearing on his motion to vacate the judgment which had been rendered against him. "A motion for continuance is addressed to the sound discretion of the trial judge and his ruling thereon is not reviewable in the absence of manifest abuse of discretion." 7 Strong, N.C. Index 2d, Trial, § 3, p. 258. In the present case there is no basis for appellant's contention that denial of his motions for continuance was a manifest abuse of the trial court's discretion. Appellant filed his motion to vacate the 7 March 1968 judgment which had been rendered against him on 9 July 1968. The motion was not heard and ruled upon until *90 11 November 1968. Appellant had more than four months in which to prepare for the hearing on his own motion. Clearly the court did not abuse its discretion in refusing to grant him additional time.

Appellant next assigns as error the denial of his motion for a jury trial on the questions of fact raised by his motion to vacate the judgment. There is no merit in this assignment of error. A motion to set aside a former judgment on the grounds of mistake, surprise, or excusable neglect, is addressed to the court. G.S. § 1-220. Questions of fact arising thereon are for the court to decide and are not issues of fact for a jury. 2 McIntosh, N.C. Practice and Procedure 2d, § 1717; cf. Coker v. Coker, 224 N.C. 450, 31 S.E.2d 364; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567.

In the present case the court found as a fact that the defendant at the time of the institution of the action against him and at the time of the trial was mentally competent, and that he deliberately refused to attend the trial. The court also found as a fact that the trial was regularly conducted, judgment was entered on the verdict, and no sufficient cause was made to appear why the judgment should be set aside. These findings are binding on appeal if supported by competent evidence. Coker v. Coker, supra. The affidavits submitted by the parties and considered by the court before making its findings have not been included in the record on appeal. When the evidence is not in the record, it will be presumed that there was sufficient evidence to support the trial court's findings of fact. In re Warrick, 1 N.C.App. 387, 161 S.E.2d 630; 1 Strong, N.C. Index 2d, Appeal and Error, § 42, p. 185 and cases cited. Since the trial court has found as a fact that defendant was mentally competent at the time of the trial which resulted in the judgment against him and that he had deliberately refused to attend the trial, there is no basis in the record for any finding that defendant's failure to defend the action was the result of any mistake, surprise, or excusable neglect on his part. In the absence of any showing of mistake, surprise or excusable neglect, the question of whether defendant had a meritorious defense becomes immaterial. Meir v. Walton, 2 N.C.App. 578, 163 S.E.2d 403. The trial judge has considered the evidence and has found the facts which he deems to be established thereby, and these facts fail to show a case of excusable neglect. There must be both excusable neglect and a meritorious defense in order to warrant vacating the judgment. Beaufort Lumber Co. v. Cottingham, 173 N.C. 323, 92 S.E. 9.

Affirmed.

MALLARD, C. J., and BRITT, J., concur.