Fred WEBB
v.
J. Claude GASKINS, Hester P. Gaskins, and G. E. Grain Mills, Inc.
No. 102.
Supreme Court of North Carolina.
September 20, 1961.*570 Lewis G. Cooper and Louis W. Gaylord, Jr., Greenville, for plaintiff, appellee.
David E. Reid, Jr., Greenville, for defendants, appellants.
PARKER, Justice.
Defendants have assigned as errors all of the judge's findings of fact, except finding of fact number two. Defendants' assignments of error are not supported by any exception in the record, not even under the assignments of error. The only exception in the record is to the judgment.
This Court has universally held that an assignment of error not supported by an exception is ineffectual, and will not be considered on appeal. Our cases to that effect are legion. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223, and cases there cited; Rigsbee v. Perkins, 242 N.C. 502, 87 S.E.2d 926; Tynes v. Davis, 244 N.C. 528, 94 S.E.2d 496; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; In re McWhirter, 248 N.C. 324, 103 S.E.2d 293; State v. Corl, 250 N.C. 262, 108 S.E.2d 613; Tanner v. Ervin, 250 N.C. 602, 109 S.E.2d 460; Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1.
This Court said in Rigsbee v. Perkins, supra [242 N.C. 502, 87 S.E.2d 927]: "And the rule is that only an exception previously noted in the case on appeal will serve to present a question of law for this Court to decide."
Defendants contend that the findings of fact numbers one and three are not findings of fact, but conclusions or inferences of law, and therefore are reviewable on appeal.
In finding facts the trial judge is required to find and state the ultimate facts, and not the evidentiary or subsidiary facts required to prove the ultimate facts. Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639.
In our opinion, and we so hold, Judge Cowper's findings of fact numbers one and three are strictly findings of ultimate facts, and not conclusions or inferences of law.
Defendants further contend that Judge Cowper's order denying their motion to vacate the order of confirmation of sale, etc., was made under a misapprehension of the law and the facts by Judge Cowper. This contention is without merit. Defendants in addition contend that the court below failed to give sufficient consideration as to whether or not the facts and circumstances growing out of the payment of the Markley claim from the assets of the corporate defendant constitutes fraud or other *571 unfairness sufficient to have set aside the confirmation of the sale. There is no basis for such a contention, as clearly set forth and shown in Judge Cowper's finding of fact number five, which is strictly a finding of fact, with the exception of the words, "and the individual defendants are estopped from reopening the same," which is a conclusion of law.
Judge Cowper's designated finding of fact number seven, "that the individual defendants are now estopped to further reopen any and all the matters set forth in the motion filed February 24, 1961," is a conclusion of law. From Judge Cowper's findings of fact set forth in his order denying defendants' motion to vacate the order of confirmation, etc., and from the various orders entered, it would seem that the receiver, acting under unchallenged orders of the court, many consented to by the parties, has made payment to all, or nearly all, of the secured and unsecured creditors of the corporate defendant. Apparently innocent third parties have acquired rights in the property sold. Not only would it seem to be an impossibility to reinstate the matter in status quo before the order confirming the sale, but it would apparently place the receiver as an officer of the court in a hazardous position.
Estoppel to question or object to a thing done or a position taken by another may arise from express consent thereto. Halliday v. Stuart, 151 U.S. 229, 14 S. Ct. 302, 38 L. Ed. 141; Lewis v. Wilson, 151 U.S. 551, 14 S. Ct. 419, 38 L. Ed. 267; Johnson v. King-Richardson Co., 1 Cir., 36 F.2d 675, 67 A.L.R. 1465; 19 Am.Jur., Estoppel, § 61, Consent. See Miller v. Miller, 200 N.C. 458, 157 S.E. 604. See Annotation 2 A.L.R.2d at pages 6-215, entitled "Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale." The fourth finding of fact shows that when defendants consented to the various orders they did not give their consent under an excusable misapprehension of the facts, but that they "were well informed of the financial affairs of the defendant corporation and knew, or should have known, the value of its property." It is written in 19 Am.Jur., Estoppel, § 62: "The doctrine of equitable estoppel is frequently applied to transactions in which it would be unconscionable to permit a person to maintain a position inconsistent with one in which he, or those by whose acts he is bound, has acquiesced." The findings of fact show that when the defendants acquiesced in the orders, they had full knowledge, or in the exercise of due diligence should have had, full knowledge of the facts.
The judge's conclusion of law number seven is fully supported by the facts found. This is sufficient to uphold Judge Cowper's order denying defendants' motion as a matter of law and equity.
Defendants' exception to the order entered by Judge Cowper on 10 March 1961 raises the question whether an error of law appears on the face of the record proper. This includes the question whether the facts found and admitted are sufficient to support the order, and whether the order is regular in form. Such an exception does not present for review the findings of fact or the evidence upon which they are based. In the absence of an exception the findings of fact are presumed to be supported by the evidence, and are binding on appeal. Beaver v. Crawford Paint Co., 240 N.C. 328, 82 S.E.2d 113; Suits v. Old Equity Life Insurance Co., 241 N.C. 483, 85 S.E.2d 602; Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242; Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E.2d 912; City of Goldsboro v. Atlantic Coast Line R. R. Co., 246 N.C. 101, 97 S.E.2d 486; Strong's N. C. Index, Vol. I, Appeal and Error, § 21, where numerous cases are cited.
Defendants in their brief say: "On February 24, the defendants filed a motion in the cause seeking to have the confirmation of the sale of the corporate assets set aside upon newly discovered evidence. *572 * * *" Judge Cowper in his discretion denied the motion.
As long as the trial court has jurisdiction over a cause, it seems to be thoroughly settled law in this nation, including this jurisdiction, that a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge, and that his ruling thereon may not be made ground for reversal on appeal unless the appellant can show a manifest abuse of judicial discretion. 39 Am.Jur., New Trial, Sections 157-163, both inclusive; 66 C.J.S. New Trial § 201, pp. 500-505, where numerous cases, including ours, are cited. It would seem, and we so hold, that defendants' motion was addressed to the sound discretion of Judge Cowper: See 50 C.J.S. Judicial Sales § 52, pp. 671-672. However, such discretion is not an arbitrary one, but judicial, and must be exercised with due regard for the rights of all parties involved measured by legal and equitable standards, and there must be a basis of fact or circumstance to justify the exercise thereof. Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910; Hensley v. McDowell Furniture Co., 164 N.C. 148, 80 S.E. 154.
Judge Cowper was thoroughly familiar with the facts, had had many hearings, and had entered several orders. Defendants at these hearings were represented by eminent counsel. The individual defendants owned one-half of the capital stock of the corporate defendant. The findings of fact clearly show that no sufficient grounds existed, such as fraud, mistake or collusion which were unknown to the defendants, or which could not have been discovered by them in due diligence, at the time of confirmation of the sale and the decree by consent that the claim of P. R. Markley, Inc., should be paid, to vacate the order of confirmation and the decree by consent that the Markley claim should be paid. Vague charges of fraud are not sufficient to set aside a judicial sale. Evers v. Watson, 156 U.S. 527, 15 S. Ct. 430, 39 L. Ed. 520.
The findings of fact support Judge Cowper's conclusion of law, and they in turn support his order denying defendants' motion, which is regular in form. Nothing appears to show that Judge Cowper abused his discretion. No error of law appears on the face of the record proper.
The order below denying defendants' motion is
Affirmed.