Appellant in brief filed in this Court challenges the judgment.of Gwyn, J., entered at February Term, 1945, upon two grounds : First and foremost: It is contended that Armstrong, J., having entered the, order of 12 June, 1944, the matter of the custody of the *513children was thereby res judicata, and therefore Gwyn, J., holding a subsequent regular term of court in the county was without authority to modify the former order without allegations or affidavits to the effect that conditions surrounding the situation had changed since the entry of the former order. The answer to this contention is found in the former order, the applicable statute, G. S., 17-39, and the findings of fact set out in the order of Gwyn, J., at the February Term, 1945. The order of Armstrong, J., specifies that the cause is retained on the docket of Superior Court of Cabarrus County for that the order is not intended to be a final determination of the rights of the parties touching the care, custody and control of the children, and that on change of conditions properly established the question may be further heard and determined. Moreover, the pertinent statute, G. S., 17-39, provides that “at any time after making such orders the court or judge may, on good cause shown, annul, vary or modify same.” And in the order of Gwyn, J., it is found as a fact “that there has been a substantial change in the circumstances of the parties since the rendition of the last order in the cause.” Hence, the exception may not be sustained on this ground.
Secondly: It is contended that no sufficient notice of the hearing before Gwyn, J., had been given to petitioner. It is contended that as this is an'“in Chambers” matter, the placing of case on the civil trial calendar is not notice to the adverse party of a hearing of the case at such term. And it is further contended that the term of court expired when the judge left the bench, and he was without authority to reconvene it for the hearing- of the case without statutory notice. If it be conceded that the placing of an “in Chambers” case on the civil trial calendar is not notice to the parties, and if it be conceded further that the adverse party was entitled to statutory notice, and if it be further conceded that the term of court had expired, the case was a matter within, the jurisdiction of the judge presiding over the courts of the district. G. S., 7-74, formerly C. S., 1446. Under this statute, G. S., 7-74, relating to rotation of judges,' a judge assigned to a district is the judge therefor for six months beginning 1 January and 1 July as the case may be. VitLin the period of such assignment the judge so assigned to a district has jurisdiction of all “in Chambers” matters arising in the district. See Reidsville v. Slade, 224 N. C., 48, 29 S. E. (2d), 215. xlnd, furthermore, the record fails to show that petitioner has been disadvantaged. He and his attorney were present. He testified orally, and the absence of his witnesses, if any were absent, was not suggested. Moreover, the record shows that witnesses other than the parties gave oral testimony, and the hearing consumed an entire day. Eather than lack of notice, the petitioner appears to have relied, in the main, upon the principle of res judicata. Hence, considering that the welfare of *514the children is “the polar star” by which the judge was to be guided, the failure to give statutory notice of the hearing, when a full hearing has been had, as in this case, will not be held to invalidate an order with respect to their care and custody. (Compare procedure in Johnson Cotton Co., Inc. v. Reaves et al., plaintiff’s appeal, ante, 436.)
Appellant also challenges the order of Gwyn, J., entered at April Term, 1945, requiring petitioner to make payments for the support and maintenance of the children to whom the petition relates — the challenge being upon ground that as this is a petition for habeas corpus, the court may not enter an order for support and maintenance of the children. Be that as it may, it appears that this order was entered after the petitioner had appealed from the order entered at previous February Term. Under that circumstance, the case was then pending in this Court, and the judge of Superior Court was without jurisdiction to enter the order. See Vaughan v. Vaughan, 211 N. C., 354, 190 S. E., 492, and Ragan v. Ragan, 214 N. C., 36, 197 S. E., 554, and cases cited. Where such defect of jurisdiction is apparent the court will of necessity so declare it ex mero moiu. See Henderson County v. Smyth, 216 N. C., 421, 5 S. E. (2d), 136, and S. v. King, 222 N. C., 137, 22 S. E. (2d), 241, and eases cited therein. Hence, there is error in the order of April Term, 1945. However, as this matter relates to the care and custody of petitioner’s minor children, he will pay the cost of the appeal.
The judgment or order of February Term, 1945, is
Affirmed.
In the judgment or order at April Term, 1945, there is
Error.