22 N.C. App. 634 | N.C. Ct. App. | 1974
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
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.
