#### C. C. HENDERSON v. JENKINS HARDWARE COMPANY, Incorporated.

(Filed 8 March, 1933.)

Appeal and Error J c—

Where there is no finding of fact and no request therefor the Supreme Court upon appeal will not attempt to ascertain the truth from conflicting affidavits, and the judgment will be affirmed, it being presumed correct with the burden on appellant to show error.

Civil actioN, before Moore, J., at June Term, 1932, of Wilkes.

Buford T. Henderson for plaintiff.

J. H. Whicker for defendant.

*776Pee Cubiam.

A justice of the peace rendered judgment for the plaintiff on 25 May, 1931. The defendant appealed and the appeal was docketed in the Superior Court on 12 October, 1931. The return of the justice of the peace was dated 30 May, 1931, and recites that notice of appeal was served on him on 30 May, and docketing fees paid. The cause came on for hearing in the Superior Court at the June Term, 1932, and the plaintiff lodged a motion to dismiss the appeal for the reason that it was not docketed in due time. The trial judge denied the motion and retained the cause for trial, and the plaintiff appealed.

There is no finding of fact and no request therefor. There are two affidavits in the record, but this Court cannot undertake to wrestle out the truth from conflicting affidavits. The burden is on the appellants to show error. In the absence of such showing the judgment of the Superior Court is presumed to be correct.

Affirmed.