Langley v. Langley

150 S.E.2d 764 (1966)

268 N.C. 415

Herman LANGLEY v. Indiana LANGLEY.

No. 362.

Supreme Court of North Carolina.

November 2, 1966.

*766 Lamar Jones, Kingston, for plaintiff appellee.

Charles L. Abernethy, Jr., New Bern, for defendant appellant.

BOBBITT, Justice.

Under the heading "Assignments of Error," defendant lists eight contentions. However, the exception to the judgment, noted in the appeal entries, is the only exception appearing in the record. An assignment of error is ineffectual unless based on an exception duly noted in apt time. Vance v. Hampton, 256 N.C. 557, 561, 124 S.E.2d 527, 530; 1 Strong, N.C. Index, Appeal and Error § 19.

In the appeal entries, defendant was allowed thirty days in which to serve case on appeal; and plaintiff was allowed twenty days thereafter in which to serve countercase or exceptions. The record before us contains what purports to be a narrative of testimony of defendant and what purport to be affidavits. The record does not show defendant served a case on appeal on plaintiff or that a case on appeal was settled by agreement or otherwise. We accept the record in its present condition as sufficient to indicate that defendant offered evidence in support of her motion and that plaintiff offered evidence (including the affidavit of David S. Henderson, Esq., defendant's former counsel) in opposition thereto.

Prerequisite to decision on defendant's motion was a determination on conflicting evidence as to Mr. Henderson's authority in respect of his representations to Judge Mintz. Mr. Henderson's status as counsel for defendant at April 1965 Civil Term and prior thereto is not challenged. Obviously, the sole basis of Judge Bundy's order is a *767 finding of fact that defendant expressly authorized her said former attorney to abandon defendant's contest of plaintiff's action for an absolute divorce.

Included in defendant's "Assignments of Error" is the following: "Judge Bundy erred in not finding facts in dismissing the motion in the cause." The exception to the judgment affords a sufficient basis for consideration of this assignment of error. However, such assignment of error is without merit. The record indicates, and counsel for defendant so stated upon the oral argument, that no request was made that Judge Bundy make findings of fact.

The general rule, applicable here, is well settled: "When there is no request for findings of fact and the court makes none, or none appear of record, it will be presumed that the court on proper evidence found facts sufficient to support (the) judgment." 1 Strong, N.C. Index, Appeal and Error § 22, p. 96, where numerous supporting cases are cited; also, 1 Strong, N.C. Index, Appeal and Error § 49, p. 136. This general rule was held applicable in the determination of a motion to vacate a consent judgment on the ground the attorney who consented thereto on behalf of the movant did not have authority to do so. Gardiner v. May, 172 N.C. 192, 89 S.E. 955. It is noted that the court, upon request therefor, is required to make and set forth in the judgment or order the essential findings of fact on which it is based. Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287. For exceptions to the general rule, see Morris v. Wilkins, 241 N.C. 507, 514, 85 S.E.2d 892, 897; and State v. Conyers, 267 N.C. 618, 148 S.E.2d 569.

Defendant having been personally served with summons, and no request for a jury trial having been filed prior to the call of the action for trial, the right to have the facts determined by a jury was waived; and the action was for trial without a jury. Under these circumstances, the presiding judge hears the evidence, answers the issues and renders judgment thereon. G.S. § 50-10 as amended by Chapter 540, Session Laws of 1963. It is noted that G.S. § 50-10 as amended by the 1963 Act applies equally to contested and uncontested divorce actions.

For the reasons stated, Judge Bundy's order denying defendant's said motion is affirmed.

Affirmed.