Coor v. . Smith

11 S.E. 1089, 107 N.C. 430

• Court: Supreme Court of North Carolina
• Decided: September 5, 1890
• Status: Published

Opinion

Clark, J.:

In Knight v. Houghtalling, 94 N. C., 408, it is held that- a writ of Assistance is never issued except “ upon notice to the person in possession,” and upon proof of a demand and refusal of possession, and that a presentation of the deed to the party is usually necessary, but is dispensed with when he is aware of it already.

It is found as a fact in the present case that there was a demand under the deed and a refusal of possession, also, that, though there was no notice of the motion served, the motion was made at the same term of the Court at which final judgment was rendered in the foreclosure proceedings by confirming the sale and directing the deed to be executed to plaintiff, and the counsel who had represented the defendant throughout those proceedings were present in Court when the motion and order for a writ of assistance were made, and raised no objection to the same. Though a final judgment does not terminate all connection of counsel with the case, notice of any motion made subsequent to that term of Court must be served on them. Allison v. Whittier, 101 N. C., 490; Branch v. Walker, 92 N. C., 87; Rogers v. McKenzie, 81 N. C., 164. But while the action is pending no actual notice is required, as all parties are presumed to have notice of all motions, orders and decrees made in the cause. Dawkins v. Dawkins, 93 N. C., 283; Williams v. Whiting, 94 N. C., 481; University v. Lassiter, 83 N. C., 38; Hemphill v. Moore, 104 N. C., 379. The motion here was made at the same term at which final judgment was rendered. During that term such judgment was still in fieri, and motions affecting the rights of the parties, - such as motions for new trial, or to set aside the verdict or the judg ment, and many others, are constantly made without serving notice, and we see no reason why the same rule should not apply in this case. It is only when a motion is made subsequent to the term at which a final judgment is rendered that notice is exacted. The order having been made at the term when final judgment was rendered, the defendant had legal notice of what transpired.

Per Ouriam. No error.