#### S. J. BARTHOLOMEW & COMPANY v. S. L. PARRISH.

(Filed 23 September, 1925.)

Appeal and Error — Record—Judgment—Pacts Found — Case on Appeal— Inconsistent Statements.

Tbe judgment setting fortb the facts in a case on appeal to the Supreme Court is a part of the record, and controls when the statement in “the case on appeal” is in material conflict.

Appeal by defendant from Sinclair, J., at March Term, 1925, of Nash.

Motion of defendant to set aside judgment, rendered in this cause at the October Term, 1924, on the ground that said judgment was taken through surprise or excusable neglect. C. S., 600. Motion denied, and defendant appeals.

Cooley & Bone and E. B. Grantham, for plaintiff.

W. H. Yarborough, D. W. Perry and Ben. T. Holden for defendant.

Stacy, C. J.

The judge found the facts and embodied them in the judgment. On the findings made, supported, as they are, by competent evidence, the motion was properly overruled. Smith v. Holmes, 148 N. C., 210; Marsh v. Griffin, 123 N. C., 660. But in the statement of case on appeal the following appears:

> “At the conclusion of the reading of the affidavits the court stated that, while -it seemed a great hardship upon the defendant, it would hold as a matter of law upon the defendant’s own showing and taking *152tbe contents of tbe affidavits in consideration, tbat be was not entitled to bave tbe judgment set aside, and for tbat reason tbe motion was denied. To tbis ruling of tbe court tbe defendant excepted.”

Tbis statement, wbicb forms tbe basis of defendant’s appeal, is slightly at variance witb tbe facts found and incorporated in tbe judgment. Under these circumstances, where tbe record proper differs from tbe statement of case on appeal, it is tbe uniform bolding of tbe Court tbat tbe former must govern. S. v. Wheeler, 185 N. C., 670; Moore v. Moore, ibid., 332. The judgment is a part óf tbe record proper (Thornton v. Brady, 100 N. C., 38), while tbe statement of case on appeal is not. S. v. Matthews, 142 N. C., 621.

Therefore, disregarding tbat part of tbe statement of case on appeal, wbicb apparently is inconsistent witb tbe facts recited in tbe judgment, we find no error. There was no motion to reform tbe judgment so tbat it might conform to tbe facts set out in tbe statement of case on appeal:

During tbe same term of court, at which tbe judgment was rendered, a motion was made to set it aside, on tbe ground tbat it was contrary to tbe weight of tbe evidence. Tbis was overruled. Appellee takes tbe position tbat tbe reasons now urged for a vacation of tbe judgment (surprise and excusable neglect) should bave been presented at tbe time of tbe first motion and tbat movant is guilty of laches in failing to do so. It is not necessary to give a definite ruling on tbis point, but where relief ¿from a judgment is sought by a party “upon such terms as may be just” (C. S., 600), it would seem tbat a proper regard for tbe rights of both parties would call for reasonably prompt action on tbe part of tbe movant after notice of tbe judgment.

Tbe judgment must be upheld on tbe facts found by tbe trial court.

Affirmed.