J. N. Clegg v. . the New York White Soap Stone Co.

Reads, J. In an application to a judge or to the Court below, to vacate a judgment under C. C. P. Sec. 133, for excusable neglect, &c., it is the duty of the Judge : first, to find the facts, as they would be set out in a special verdict, and then to declare the law upon the facts. When this is done and there us an appeal to this Court, we take the finding of the facts by His Honor as conclusive ; and we review his opinion and judgment as to the law. Because, whether a given state of facts «constitutes excusable neglect, &c., under the Code, is a ques *393 tion of law. But if His Honor does not find the facts and set them forth, how can we declare the law ? Nor is it sufficient that His Honor should state the testimony, for, as in this case, that may be often conflicting, and we are incompetent to try the facts, but he must weigh the testimony and eliminate the facts, and set them forth. In this case, His Honor set forth no facts, but has simply stated his conclusion of law. It, is, however, insisted that it ought to be presumed, that His Honor found such a state of facts, as would justify his conclusion of law. This would be the same as to say that His Honor could not err in his conclusion of law upon a given state of facts, and would make his judgment final. Eor, we repeat, how can we determine -whether his law is right, unless we know the facts % Hudgins v. White, et al, 63 N. C. R. 393, Powell v. Weith, at this term. There is error. Let this be certified to the end that 'His Honor may find the facts, &c. Fee Curiam. Error.