The principal objection goes to our holding that Code 1915, § 4186, does not require five *Page 609 days' notice of final hearing of an equity cause during terms. It is urged that, under section 4185 and numerous decisions reviewed in Fullen v. Fullen, 21 N.M. 212, 153 P. 294, and later decisions, there are no terms of court except for jury trials; that for equity causes courts are always in session; and that hence, if counsel "are presumed to be present during terms of court wherein their causes are pending," as said in United States v. Irrigation Co., 13 N.M. 386, 85 P. 393, they are always presumed present with respect to equity cases. It is urged that such a rule, not only works hardship upon attorneys and litigants, but amounts to denial of due process of law.
Because the Legislature has seen fit to abolish terms of court for the transaction of all nonjury business, including final hearings, it does not follow that, in prescribing the notice to be given in equity causes, it might not take into consideration the regular recurrence of jury terms, and require less or shorter notice during such terms. It is hardly to be doubted that section 4186 applies to equity causes, and it plainly contemplates that, during term, the time of hearing of a nonjury case shall be at the discretion of the court. It is equally plain that during vacation the five days' notice is necessary. This only to avoid misunderstanding of our former opinion.
It is urged that, even if five days' notice is not necessary, some notice is a fundamental requisite, and that appellant had none. Appellee questions whether the lack of all notice properly appears of record. However that may be, the answer is that appellant had constructive notice, through the presumptive presence of her counsel when the cause was set for hearing. This doctrine may be harsh, but it is of long standing. We do not feel free to depart from it.
Counsel, referring to our suggestion that the discretion of the trial court was not invoked to vacate the judgment, urges that, under the view we hold and the decisions as to the control of a trial court over its *Page 610 judgments, that court was without discretion. He points out that this was not a judgment rendered "out of term time, upon default." Code 1915, § 4227. It was not irregular. Code 1915, § 4230. He overlooks the fact that It was under control of the court rendering it for 30 days. Laws 1917, c. 15.
Satisfied that the appeal was correctly decided, we adhere to our former disposition thereof.
PARKER, C.J., and BICKLEY, J., concur.