Howell v. Howell

Court of Appeals of North Carolina

Howell v. Howell

207 S.E.2d 312, 22 N.C. App. 634, 1974 N.C. App. LEXIS 2400

CourtCourt of Appeals of North Carolina

DecidedAugust 7, 1974

DocketNo. 746DC327

StatusPublished

Cited by4 cases

This text of 207 S.E.2d 312 (Howell v. Howell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howell v. Howell, 207 S.E.2d 312, 22 N.C. App. 634, 1974 N.C. App. LEXIS 2400 (N.C. Ct. App. 1974).

Pincite

Opinion

CARSON, Judge.

The defendant contends that notice was required to be served upon him before the court could enter the order transferring ownership of the motor vehicle to the plaintiff. Normally, notice of a motion out of term must be given to the opposing party. Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E. 2d 19 (1967) ; Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709 (1953). If the moving party is entitled to the relief strictly as a matter of right, such notice is not required. Collins v. Highway Commission, supra. However, in the instant case, the moving party was not entitled to ownership of the vehicle as a matter of right. The defendant should have been provided with notice as required by the North Carolina Rules of Civil Procedure in order that he might present what evidence or defense he desired. G.S.1A-1, Rule 6(a), (d),and (e).

Likewise, the defendant did not receive proper notice of the hearing which was conducted on 27 September. Rule 6(d) of [637]*637the Rules of Civil Procedure requires that motions such as this be served on the opposing party not later than five days before the time specified for the hearing. Rule 6(a) of the Rules of Civil Procedure further provides that when the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and holidays, shall be excluded in the computation. Following this formula, the earliest that the hearing could have been conducted was 28 September. In addition, Rule 6(e) of the Rules of Civil Procedure provides that when service of notice is by mail, three days shall be added to the prescribed period. Consequently, the defendant did not receive adequate notice of the hearing, and the orders entered must be vacated.

While the defendant could have waived the lack of notice and proceeded with the hearing, he certainly did not do so, by implication or otherwise. Rather, he appeared at the hearing, notified the court that he had not received adequate notice, that he was not prepared, and objected to the hearing on the grounds of lack of notice. He did not participate in the hearing but left the courtroom after informing the court of his objection. It was, therefore, erroneous for the trial court to continue the hearing because of the lack of adequate notice, and the orders entered must be vacated.

Orders vacated.

Judges Britt and Hedrick concur.

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CARSON, Judge.

The defendant contends that notice was required to be served upon him before the court could enter the order transferring ownership of the motor vehicle to the plaintiff. Normally, notice of a motion out of term must be given to the opposing party. Gravel Co. v. Taylor, 269 N.C. 617, 153 S.E. 2d 19 (1967) ; Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709 (1953). If the moving party is entitled to the relief strictly as a matter of right, such notice is not required. Collins v. Highway Commission, supra. However, in the instant case, the moving party was not entitled to ownership of the vehicle as a matter of right. The defendant should have been provided with notice as required by the North Carolina Rules of Civil Procedure in order that he might present what evidence or defense he desired. G.S.1A-1, Rule 6(a), (d),and (e).

Likewise, the defendant did not receive proper notice of the hearing which was conducted on 27 September. Rule 6(d) of [637]*637the Rules of Civil Procedure requires that motions such as this be served on the opposing party not later than five days before the time specified for the hearing. Rule 6(a) of the Rules of Civil Procedure further provides that when the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and holidays, shall be excluded in the computation. Following this formula, the earliest that the hearing could have been conducted was 28 September. In addition, Rule 6(e) of the Rules of Civil Procedure provides that when service of notice is by mail, three days shall be added to the prescribed period. Consequently, the defendant did not receive adequate notice of the hearing, and the orders entered must be vacated.

While the defendant could have waived the lack of notice and proceeded with the hearing, he certainly did not do so, by implication or otherwise. Rather, he appeared at the hearing, notified the court that he had not received adequate notice, that he was not prepared, and objected to the hearing on the grounds of lack of notice. He did not participate in the hearing but left the courtroom after informing the court of his objection. It was, therefore, erroneous for the trial court to continue the hearing because of the lack of adequate notice, and the orders entered must be vacated.

Orders vacated.

Judges Britt and Hedrick concur.

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207 S.E.2d 312, 22 N.C. App. 634, 1974 N.C. App. LEXIS 2400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-howell-ncctapp-1974.

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