11 S.E. 1089 | N.C. | 1890
Upon the hearing, the court found the facts and made an order refusing defendant's motion to annul and restore possession.
To the order of refusal the defendant excepted, and alleged for error that it appeared from the facts found that the defendant had no actual notice of a motion for the writ of assistance; that, although it appeared from the said facts that the defendant was represented by counsel in the action for foreclosure, in which said writ of assistance was moved for, who was present in court at the time of the said motion and made no objection to the granting of the same, this was not sufficient notice.
Defendant appealed from said order to the Supreme Court.
In Knight v. Houghtalling,
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,
Per Curiam. Affirmed.
Cited: Harper v. Sugg,