XLVI. MOTIONS AND ORDERS.

873. What is an order. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.

Code, s. 594; C. C. P., ss. 344, 345.

874. Motions; where and when made. An application for an order is a motion. Motions may be made to a clerk of a superior court, or to a judge out of court, except for a new trial on the merits. Motions must be made within the district in which the action is triable. A motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions.

Code, s. 594; C. C. P., ss. 344, 345.

875. Affidavit for or against, compelled. When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue.

Code, s. 594; C. C. P., ss. 344, 345.

876. Motions determined in ten days. Whenever a motion shall be made in any cause or proceeding in any of the courts, to obtain an injunction order, order of arrest, or warrant of attachment, granted in any such case or proceeding, or a motion to vacate or modify the same is made, it shall be the duty of the judge before whom such motion is made, to render and make known his decision on such motion within ten days after the day upon which such motion shall or may be submitted to him for decision.

Code, s. 594; C. C. P., ss. 344, 345.

877. Notice of motion. When notice of a motion is necessary, it must be served ten days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time.

878. In writing. All notices shall be in writing.

Code, s. 597; C. C. P., s. 349.

879. On whom served. Notices and other papers may be served on the party or his attorney personally, where not otherwise provided in this chapter.

Code, s. 597; C. C. P., ss. 349, 353.

Note. For statute against service on Sunday, see s. 727.

880. Service upon attorney. If served upon an attorney, service may be made during his absence from his office, by leaving a copy of the paper with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or, if it be not open so as to admit of such service, then by leaving it at the attorney's residence with some person of suitable age and discretion.

Code, s. 597; C. C. P., ss. 349, 353.

881. Served on a party. If upon a party, it may be made by leaving a copy of the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion.

Code, s. 597; C. C. P., ss. 349, 353.

882. Served by publication. If upon a person who can not be found after due diligence, or who is not a resident of this state, the service thereof may be made by the publication of the notice once a week for four successive weeks in some newspaper published in the county from which the notice is issued; and if no newspaper be published therein, then in some newspaper published within the judicial district; and the proof of service shall be as is required by law in the case of a service of a summons by publication.

Code, s. 597; C. C. P., ss. 349, 353.

883. Publication of notices in Buncombe county. Whenever the clerk of the superior court of Buncombe county or a judge of the superior court holding the superior court of said county shall sign or make any order directing the publication of any notice, order or proceeding required by law to be published in Buncombe county, it shall be the duty of said clerk or said judge to designate in the said order the newspaper in which said notice, order or proceeding shall be published, and no notice, order or proceeding published in any paper other than the one designated in the said order shall be legal and sufficient.

1905, c. 438.

884. Subpœna, issuance and service. Service of a subpoena for witnesses may be made by a sheriff, coroner or constable, and proved

by the return of such officer, or the service may be made by any person not a party to the action, and proved by his oath. A subpoena for witnesses need not be signed by the clerk of the court; it shall be sufficient if subscribed by the party or by his attorney.

Code, s. 597; C. C. P., ss. 349, 353.

Note. For issuance of subpœnas by clerk, see s. 1639.

885. To what this subchapter applies. This subchapter shall not apply to the service of a summons, or other process, or of any paper to bring a party into contempt.

Code, s. 597; C. C. P., ss. 349, 353.

886. Officer's return evidence of service. When a notice shall issue to the sheriff, his return thereon that the same has been executed shall be deemed sufficient evidence of the service thereof.

Code, s. 940; R. C., c. 31, s. 123; 1799, c. 537.

XLVIII. TIME.

887. How computed. The time within which an act is to be done, as provided by law, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. Code, s. 596; C. C. P., s. 348.

888. Computation of, in publications. The time for publication of legal notices shall be computed so as to exclude the first day of publication and include the day on which the act or event of which notice is given is to happen, or which completes the full period required for publication.

Code, s. 602; C. C. P., s. 359.

NOTE. See ss. 443, 766, 770, 879, 834.

889. Includes judge of probate, which is abolished. The office or place of probate judge is abolished, and the duties heretofore pertaining to clerks of the superior court as judges of probate shall be performed by the clerks of the superior court as clerks of said court, and all matters pending before said judges of probate shall be deemed transferred to the clerks of the superior court.

Code, s. 102.

890. How elected; term of office. A clerk of the superior court. for each county shall be elected by the qualified voters thereof, at the time and in the manner prescribed by law for the election of members of the general assembly. Clerks of the superior court shall hold office for four years.

Const., Art. IV, ss. 16, 17.

891. How inducted into. The clerks of the superior court, before entering on the duties of their office, shall take and subscribe before some officer authorized by law to administer an oath, the oaths prescribed by law, and file such oaths with the register of deeds for the county.

Code, s. 74; C. C. P., s. 139.

Note. Acting before qualifying a misdemeanor, see s. 3565.
For official bond, see s. 295.

892. When declared vacant. In case any clerk shall fail to give bond and qualify as required by law, the presiding officer of the board of commissioners of his county shall immediately inform the resident judge of the judicial district thereof, who shall thereupon declare the office vacant and fill the same, and the appointee shall give bond and qualify.

Code, s. 76; C. C. P., s. 140.

Note. Clerk can give security in lieu of bond, see Bonds, s. 268.

893. May be resigned. Any clerk of the superior court may resign his office to the judge of the superior court, residing in the district in which is situated the county of which he is clerk, and said judge shall fill the vacancy.

Const., Art. IV, s. 29; Code, s. 78.

894. When removed from. Upon the conviction of any clerk of the superior court of an infamous crime, or of corruption and malpractice in office, he shall be removed from office, and he shall be disqualified from holding or enjoying any office of honor, trust or profit under this state.

Code, s. 123; 1868-9, c. 201, s. 53.

895. How vacancies filled. In case the office of clerk of a superior court for a county shall become vacant otherwise than by the expiration of the term, and in case of a failure by the people to elect, the judge of the superior court for the county shall appoint to fill the vacancy until an election can be regularly held.

Const., Art. IV, s. 29.

896. How furnished with stationery, etc. The requisite stationery, records, furniture and filing cases and devices for official use must be furnished to the clerk by the board of commissioners; and to each of such books there must be attached an alphabetical index securely bound in the volume, referring to the entries therein by the page of the book, unless there is a cross-index of such book required by law to be kept. These books must, at all proper times, be open to the inspection of any person.

Code, ss. 82, 84, 113; C. C. P., s. 428.

897. Examined by solicitor. At every regular term of the superior court, the solicitor for the judicial district shall inspect the office of the clerk and report to the court in writing. If any solicitor shall fail or neglect to perform the duty hereby imposed on him, he shall be liable to a penalty of five hundred dollars to any person who shall sue for the same.

Code, s. 88; C. C. P., s. 147.

NOTE. Failing to keep records a misdemeanor, see s. 3592.

II. DEPUTIES.

898. May be appointed. Clerks of the superior court may appoint deputies, who shall take and subscribe the oath prescribed for clerks. Code, s. 75; R. C., c. 19, s. 15; 1777, c. 115, s. 86.