concurring specially.
I concur in all that is set forth in the majority opinion. But I particularly wish to add to subdivision 4(b) of the opinion.
There it is shown that at a previous term of the court, judgment was rendered for plaintiff, and after the term of court had ended, and a new term of court had begun, the defendant went to the trial judge, ex parte and without *706notice to the plaintiff, and procured an order of the court which purported to vacate the judgment.
Besides the very able discussion in the opinion which shows the trial court was powerless to take such action, I do not wish to pass over lightly the way in which it was done, to wit, ex parte and without notice to the plaintiff or its counsel.
Is that the way to practice law in Georgia? Except when a temporary injunction is sought, or some similar remedy which is absolutely necessary to prevent losing jurisdiction of a party or the happening of some event which would cause irremediable damages, what right has a party to ever obtain a court order without notice to his adversary? And for that matter, what right has the judge to allow one to take such advantage of his adversary? Our Codes of Professional Responsibility and Judicial Conduct are plain on the subject, and are as follows: "A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” Canon 3, A(4), Code of Judicial Conduct, 231 Ga. A-3. Old Judicial Canon 17 is practically to the same effect, as follows: " 'A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.’ ” See Grizzard v. Davis, 131 Ga. App. 577, 579 (206 SE2d 853). Further, Canon 7, Rule 3-107 (Code of Professional Responsibility; Ethics Considerations, E. C. 7-35) states that"... an oral communication by a lawyer... should be made only upon adequate notice to opposing counsel.” State Bar of Georgia 1971-1972, Handbook and Directory Supplement.
While the ex parte order here was served on counsel, nevertheless, there was no hearing or notice of a hearing, and the court vacated and set aside the judgment ex parte.