100 S.E. 184 | N.C. | 1919
This was a proceeding to set aside a judgment by default final on the ground of irregularity and excusable neglect. The action was to declare certain deeds void and the plaintiff the owner of the land in fee simple. The complaint was duly verified and filed 3 July, 1916, and judgment by default final entered at September Term, no answer having been filed. The summons was issued returnable to the May Term, and was served on 11 May, 1916. The judgment by default final was regular. Rev. 556(4); Junge v.MacKnight,
Section 513 provides: "The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken *91 against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding."
The judgment here sought to be set aside was rendered on 17 September, 1916, at the term of Harnett court which began on 3 September. The motion to set aside for excusable neglect was entered on 4 September, 1917, at the term which began 2 September. The court was of opinion that as judgments related back to the first day of the term that the motion entered 4 September, 1917, at September Term, which began 2 September, was not within the one year after the entry of a judgment rendered at September Term, 1916, which term began 3 September.
The defendant's counsel with some pertinency suggests that if the judgment entered 16 September, 1916, related back to 3 September, the first day of that term, then the motion which was entered on 4 September, 1917, should relate back also to 2 September, the first day of that term, and that the fiction that all (86) proceedings should date back to the first day of the term should apply to the motion to set aside the judgment equally as to the judgment itself.
But we do not think that Rev. 573, which provides that "All judgments rendered in any county by the Superior Court thereof during a term of the court, and docketed during the same term or within ten days thereafter, shall be held and deemed to have been rendered and docketed on the first day of said term" applies to motions to set aside judgments for excusable neglect.
Revisal 573, originated in Rule XVIII of the Supreme Court,
Originally when a judgment was taken it could not be set aside on motion after the adjournment of the term for excusable neglect or mistake when the judgment was taken in regular course. Moore v. Hinnant,
Parties to an action are fixed with notice of all judgments and orders taken in a cause during the term of the court (University v. Lassiter,
Revisal 513, provides that the motion to set aside this judgment can be made at any time within one year "after notice thereof." The defendant was fixed with notice of this judgment, having been served with summons, from the day it was taken, i.e., on 16 September. In all other cases (as for instance when he has been made a party to a pending action without notice) he has one year from actual notice. McLean v. McLean,
The merits of the motion have not been passed upon and are not before us. The order refusing the motion must be set aside that the merits of the motion may be passed upon.
Reversed.
Cited: Gilliam v. Cherry,