Alston v. Southern Railway Co.

Olaekson, J. The plaintiff James Alston contends: (1) Said judgment of 28 December, 1933, should have been set aside because of mistake, surprise and excusable neglect, as provided for under C. S., 600. *117 (2) Said judgment of 28 December, 1933, should have been set aside because the attorney who was representing appellant at the time undertook to compromise the action of appellant and enter into a consent judgment and waive substantial rights of appellant without plaintiff’s knowledge or consent, and without having any specific power or authority to do so. From the record in this Court, we cannot sustain the contentions of the plaintiff. Article IV, section 8, of the Constitution of North Carolina is as follows: “The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdiction of said Court over ‘issues of fact’ and ‘questions of fact’ shall be the same exercised by it before the adoption of the Constitution of one thousand eight hundred and sixty-eight, and the Court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts.” Evidence, by affidavits, was submitted on both sides of the controversy to both the clerk and on appeal to the Superior Court. The clerk and the judge on appeal held against the contention of plaintiff James Alston that his attorney who signed the consent judgment did not have the authority. The law is well settled. In Lumber Company v. Cottingham, 173 N. C., 323 (327), citing a wealth of authorities: “We are concluded by the judge’s finding of facts, where there is some supporting evidence.” In Bank v. Duke, 187 N. C., 386 (390), it is written: “It is the duty of the court below to find the facts, and his finding is ordinarily conclusive. Upon the facts found, the conclusion of law only is reviewable.” Abbitt v. Gregory, 195 N. C., 203 (209). The request made by plaintiff James Alston for the clerk to find the material facts on which to base his order came too late. The order was signed by the clerk on 14 April, 1934, and appeal taken. The request was made before the clerk on 24 April, 1934. We think the material facts found by the court below sufficient to support the judgment appealed from. We see no right that plaintiff James Alston has to have a jury pass on the facts from the record in this case. The court below having found the facts, and there was sufficient evidence to support same, this, on appeal, is binding on us. For the reasons given, the judgment of the court below is Affirmed. ScheNCK, J., took no part in the consideration or decision of this case.