Coor v. Smith

• Decision Date: 27 October 1890
• Citation: 11 S.E. 1089,107 N.C. 430
• Parties: COOR v. SMITH.
• Court: North Carolina Supreme Court

11 S.E. 1089

107 N.C. 430

COOR v. SMITH.

Supreme Court of North Carolina

October 27, 1890

Motion of defendant to set aside an order for a writ of assistance heard before MACRAE, J., at March term, 1890, of Wayne superior court. The judge found the facts, and refused the motion. The defendant excepted, and assigned as error that it appeared from the facts found that the defendant had no actual notice of the plaintiff's motion for the writ of assistance; that defendant was represented by counsel in the foreclosure proceedings in which the said writ was moved for who was present in court at the time the motion was made, and offered no objection to the granting of the same, which notice was insufficient. The court denied the motion to set aside the order for writ of assistance, and the defendant appealed.

C. B Aycock, for plaintiff.

CLARK J.

In Knight v. Houghtalling, 94 N.C. 408, it is held that a writ of assistance is never issued except "upon notice to the person in possession," and upon proof of a demand and refusal of possession. A presentation of the deed to the party is usually necessary, but is dispensed with where he is aware of it already. 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 actual 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. The counsel who had represented the defendant throughout those proceedings were present in court when the motion and an order for a writ of assistance was made, and raised no objection to the same. Though a final judgment does not terminate all connection of counsel with the case, notice of the motion made subsequent to that term of court must be served on them. Allison v Whittier, 101 N.C. 490, 8 S.E. Rep. 338; Branch v Welker, 92 N. G. 87; Rogers v. McKenzie, 81 N.C. 164. But, while the action is pending, no actual notice is required, as all parties are presumed to have notice of all motions, orders, and decrees made in the cause. Dawkins v. Dawkins, 93 N.C. 283; Williams v. Whiting, 94 N.C. 481; University v. Lassiter. 83 N.C. 38; Hemphill v. Moore, 104 N.C. 379, 10 S.E. Rep. 313. The motion here was made at the same term at which final judgment was rendered. During that term, such...