#### THOMAS J. JONES v. GEORGE W. SWEPSON.

Motion to Vaeate Judgment — Practice.

Upon a motion to vacate a judgment, it is the duty of the Court below to find the facts upon which its judgment is grounded, and on appeal to this Court to set them forth upon the record.

(Clegg v. White, S. S. Co., 66 N. C. 391; Powell v. Weith, Ib. 423; Hudgins v. White, 66 N. C. 393, cited and approved.)

Motion by defendant to vacate a judgment under C. C.P. § 133, heard at Spring Term, 1878, of Cumberland Superior Court, before Moore, J.

The motion was allowed and the plaintiff appealed.

Mr. J. W. Hinsdale, for plaintiff.

Messrs. Merrimon, Fuller Ashe, for defendant.

Bynum, J.

This is an application to the Judge below to vacate a judgment under C. C. P. § 133 for excusable neglect. As the affidavit of the defendant is contradicted in some material particulars by the affidavit of the plaintiff, it was the duty of the Judge to find and set forth upon the record the facts upon which he grounded his judgment. "Whether a given state of facts constitutes excusable neglect is a question of law. This Court has no jurisdiction to find *511the facts from the testimony contained in the affidavits when they are conflicting. That is the peculiar province of the Court below. This is as well settled as any proposition can be, by many concurring decisions of this Court. Clegg v. White Soap Stone Co., 66 N. C., 391; Hudgins v. White, 65 N. C. 393; Powell v. Weith, 66 N. C. 423.

Error. Reversed.