
    ALEXANDER OLDHAM v. W. M. SNEED.
    
      Practice* — Appeal—Excusable Neglect
    
    Upon an appeal from an order refusing to vacate a judgment nndel* 0. C. P., § 133, it is the duty of the judge to find the facts, so that this court may decide whether in law they amount to mistake, inadvertence, or excusable neglect.
    Motion to vacate a judgment heard at spring term, 1878, of New Hanover superior court, before Eure, J.
    
    No statement of the case is necessary to an understanding of the opinion.
    
      Mr. J. D. Bellamy, for plaintiff.
    
      Messrs. A. T. & J. London, for defendant.
   Dillard, J.

This was an application in the court below by the defendant to vacate a judgment against him under C. 0. P., § 133, on the grounds therein mentioned, and from the denial of the motion an appeal is taken to this court.

The ease of appeal, as made out by the judge, states the judgment of the court merely, and shows no facts on which he acts, but directs the affidavits used before him and the record of the cause in which the judgment complained of was obtained, to be sent up. From the exercise of his discretion no appeal lies, but from his mistakes of the law in ascertaining the facts, or upon the question whether the facts in law amount to mistake, inadvertence, or excusable neglect, an appeal may be taken, and the judge below reviewed. In the absence of any facts found, we can only see from the case sent up that His Honor refused to vacate the judgment, but why he did so, or whether with or without any mistake, or misapplication of the law, cannot be seen.

Let this be certified to the end that defendant may renew his motion if so advised and have the court to find the facts, and thereon, the judgment of the court.

Per Curiam. Order accordingly.  