C. S., 545 provides for amendments to pleadings. In the case at bar no effort was made to amend the pleadings before the time for answering expired. After the time for answering has expired it has been the uniform practice to apply to the court for permission to amend. This application may be oral or written, but notice of such motion is required unless made during a term of court at which the action stands for trial. When such motion is made at the trial term the parties are presumed to be present, and hence notice is unnecessary.
C. S., 912, provides that the notice of a motion must be served ten days before the time appointed for the hearing unless the court or judge by order shall fix a shorter time. The trial judge finds as a fact that on 20 June, 1930, a verified complaint “reciting on its face that it was filed under leave of court duly had, was duly served on the defendant on 20 June, 1930, and specifically and fully charged the defendant with fraud in contracting the debt and asked for a judgment against the person and a like execution in the event execution against the property was returned unsatisfied.” The court further found that the allegations in the amended complaint “were sufficient to put the defendant on notice that he was charged with fraud in contracting the indebtedness.” The Court further found that the “amended pleading was not filed for the *713purpose of delay, and that there was no excusable neglect, and that the defendant was not taken ' by surprise.” It was also found that the defendant bad 'a meritorious defense.
‘ If 'it be conceded that the order of 12 August, 1929, permitting the plaintiff to amend the complaint and charge fraud, was irregularly made because no notice was given, still it is manifest that when the amended complaint was actually served on the defendant on 20 June, 1930, he was fully apprised of the nature of the suit. Notwithstanding, he made no' appearance and filed no answer for a period of four months, and until execution -was served upon him by the sheriff. Then for the first time .he lodged a motion to set aside the judgment.
Upon- the facts found by the trial judge, it is obvious that the defendant waived the irregularity complained of.
The controlling principle of law was thus stated in Ins. Co. v. Scott, 136 N. C., 157: “Equitable relief will not be granted to a party against a judgment because of good ground (even) of defense of which he was ignorant, till after judgment rendered, unless he shows that by the exercise 'of reasonable diligence he could .not have discovered such defense'in-time for the trial,.or.that he was prevented from the exercise of such diligence by fraud or surprise on the part of the opposing party, or by accident or mistake unmixed with the negligence on his part.”
So, in the ease at bar, the defendant had a good defense, but he never attempted to assert it for more than four months after notice of the charge of fraud laid against him; nor does it appear that he employed •an attorney or took any steps whatever to protect his rights. The Court is, therefore, of the opinion that the trial judge was without power to set aside the judgment as a matter of law. McIntosh North Carolina Practice & Procedure, 520-21; Jones v. Jones, 173 N. C., 279; McLaughlin v. R. R., 174 N. C., 182.
Reyersed..