(September Term, 1892.)
Motions and Orders — Judgment — Notice.
1. Judgments and orders are in fieri during the term they are rendered, and motions may be made to set them aside without notice; but after that term such motions can only be heard after due notice.
2. A motion heard upon verbal notice given on the day of the hearing is irregular, and should have been dismissed.
ACTION for the recovery of personal property, tried by Winston, J., at April Term, 1892, of GREENE.
No counsel for plaintiff.
George M. Lindsay for defendant.
At November Term, 1891, an order was made referring the case to a referee to hear and determine the issues involved, and a report was accordingly submitted to the next term of the court (in January, 1892); and there being no exceptions to the report, it was confirmed, and judgment rendered in favor of the defendant.
And at the next term (in April, 1892), his Honor set aside said final judgment upon the ex parte affidavit of Swift Galloway, without any notice of a motion, for that purpose, being served on the defendant or his attorney, except an oral notice made in open court on Wednesday of the term.
The said affidavit was submitted to his Honor about 11:30 o'clock p. m. of the said Wednesday, and the court adjourned the following morning at 8 o'clock.
The following order was made:
"The court having read and considered the affidavit of Swift Galloway (attorney at law), is of opinion, and so adjudges, that the plaintiff has not been guilty of any laches in filing his exceptions, and that the judgment heretofore rendered was inadvertently given."
And the court thereupon adjudged that the same be vacated and set aside, and that the case stand for trial at the next term. From which judgment the defendant appealed, and excepted upon the following grounds, to wit:
1. No notice of motion to set the judgment aside and allow plaintiff to file exceptions was given to defendant or his counsel.
2. The affidavit upon which the judge acted was ex parte, and failed to disclose any merits or any errors in referee's report.
3. The exceptions filed by plaintiff do not state clearly what facts or issues the plaintiff desired to be submitted to the jury.
4. His Honor erred in granting a trial upon the whole case, and in not specifying the issues to be tried by the jury.
The action of the court below was erroneous, certainly on the first of the grounds specified by the appellant.
(327) While all orders and judgments are in fieri during the term at which they are made, and may be modified or set aside at such term without notice, after such term a final judgment cannot be set aside except upon notice given. Branch v. Walker, 92 N.C. 87; Allison v. Whittier, 101 N.C. 490; Coor v. Smith, 107 N.C. 430. This is but right and just. A judgment is finis litium, and parties are not required thereafter to keep counsel on hand at the succeeding terms of the court lest an order affecting the judgment should be made. When notice of a motion is necessary, the statute prescribes that it must be served ten days before the time appointed for the hearing, though the judge may, by an order to show cause, prescribe a shorter time. The Code, sec. 595. This was not done here. The notice was given verbally, and the appellant might, if he had chosen, have added this as a fifth ground of exception. The Code, sec. 597. It was given on the very day the motion was heard, and doubtless the appellant was deprived of opportunity to file counter-affidavits. The appellee was fixed with notice of the judgment taken at the preceding term ( University v. Lassiter, 83 N.C. 38; Hemphill v. Moore, 104 N.C. 379); besides his affidavit sets out that he had actual notice. He had ample opportunity, and should have served legal notice in proper time of his intention to move to set the judgment aside so that the opposite party might have been prepared to meet him. This renders it unnecessary to consider the other assignments of error. As the case does not go off on the merits, the appellee is not deprived of the right to renew the motion upon proper notice, if within the time prescribed by the statute. The Code, sec. 274.