Summary
In Cook v. Sink, 190 N.C. p. 625, it was said: "`Where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another.' 16 Cyc., p. 785; Holloman v. R. R., 172 N.C. p. 376."
Summary of this case from Randolph v. EdwardsOpinion
(Filed 21 October, 1925.)
Judgments — Excusable Neglect — Motions — Appeal and Error.
Upon refusal of plaintiff's motion to set aside a judgment for surprise, mistake or excusable neglect, the findings by the judge below upon these questions adverse to plaintiff are not reviewable on his appeal.
APPEAL by several of the plaintiffs from Barnhill, J., at February Term, 1925, of CRAVEN.
A. W. Graham Son, C. D. Turner for plaintiffs.
Ward Ward, D. L. Ward, T. D. Warren for defendants.
Motion of plaintiffs, Chester D. Turner, Devereaux Turner, George Lord and wife, Margaret Lord, to set aside judgment, rendered in this cause at the September Term, 1924, Craven Superior Court, on the grounds (1) that the appealing plaintiffs were not duly represented by counsel authorized to appear for them at the time of the entry of said judgment; and (2) that the same was taken through mistake, inadvertence, surprise or excusable neglect as to them. C. S., 600. Motion denied, and plaintiffs, as above named, appeal.
The judge found the facts, as he is required to do, and embodied them in the judgment. Smith v. Holmes, 148 N.C. 210. Upon the findings made, supported, as they are, by competent evidence, the motion was properly overruled. Bartholomew v. Parrish, ante, 151.
Not only did the judge find, upon ample evidence, that the appealing plaintiffs were duly represented by reputable and solvent counsel at the time of the entry of the judgment in question and that the same was taken through no mistake, inadvertence, surprise or excusable neglect on their part or on the part of the appealing plaintiffs, but he went further and found that the plaintiffs had no meritorious cause of action in the matters alleged and upon which suit was based. Crumpler v. Hines, 174 N.C. 284. These findings are fatal to the appeal of the plaintiffs. Bank v. Duke, 187 N.C. 386; Norton v. McLaurin, 125 N.C. 185. And they are binding on us. Gaster v. Thomas, 188 N.C. 346.
There is no error appearing on the record.
Affirmed.