Harper v. . Sugg

Clark, J.: 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, § 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, § 597. It was given on the very day the motion was heard, and doubtless the appellant was deprived of oppor- ' tunity 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, § 274. Per Curiam. Error.