Defendants resisted the motion, upon the ground that the same had not been interposed until more than a year after the rendition of the judgment in the action, at August Term, 1893, which, being a final judgment, could be assailed and vacated only by an independent *Page 526 action. His Honor, upon the affidavit of the said plaintiff, granted her motion and made the order vacating the said judgment of August Term, 1893, and granting the said plaintiff leave to amend her complaint.

The defendants excepted to said ruling and order, and appealed. This is a motion, made at December Term, 1894, to set aside a (836) judgment of the Superior Court taken at August Term, 1893. The motion being made more than a year after the judgment was rendered, it cannot be set aside for excusable neglect, under section 274 of The Code, unless the party making it has had no notice of the existence of the judgment until within one year prior to the time of making the motion. The feme plaintiff, in her affidavit in support of her motion to set aside the judgment as to her, says that she did not know, until about "four months before making the motion, that her husband had attempted to settle the case or to have the same dismissed." By this we understand that she had no actual notice of the judgment until about four months before making the motion.

The opinions of this Court have not always been uniform as to this matter of notice. But in McLean v. McLean, 84 N.C. 366, where a summary of the decisions on the subject is made, it is held that plaintiffs and defendants who have had personal service of process have legal notice of any judgment entered at a regular term of the court in their actions, and that only such defendants as are not affected by such personal service of process, duly made, may avail themselves of a want of notice to enable them to make this motion after the lapse of one year from the date of the judgment. According to this rule which now seems to be settled as the law governing motions made under section 274, the court had no power to make the order appealed from, and there is error. The order made at December Term, 1894, must be vacated and the judgment at August Term, 1893, allowed to stand as the judgment of the Court.

Error. *Page 527

(837)