Opinion
(February Term, 1892)
Judgment, Vacating — Fraud.
The remedy against a final judgment, on the ground of fraud, is by an independent action, and not by motion in the original cause.
MOTION to set aside a judgment as to the feme defendant, heard at Fall Term, 1891, of CRAVEN, before Bryan, J.
W. D. Clark for plaintiff.
W. D. McIver for defendants.
The feme defendant stated in her affidavit, as ground for granting the motion, in substance —
1. That she had no notice of the judgment rendered against her at May Term, 1888, till the notice was served on her, 19 June, 1891.
2. That she was not present at said May term, because of an agreement between her husband and the plaintiff under which he was to have three years longer to settle the mortgage.
3. That she did not consent to the rendition of the judgment against her, and if she was represented by attorney, he acted without authority.
4. That she had an interest in the land in her own right, separate and distinct from that of her husband, and that she did not set it up because of the representation of her husband as to the agreement with the plaintiff, and that it would be a fraud upon her rights to subject her property to pay her husband's debts.
5. That she was advised she had a good cause of defense, and (92) that the attorney who assumed to represent her was insolvent, said attorney being admitted to be insolvent.
The defendants had set up the alleged agreement for indulgence for three years in affidavits filed before the clerk, in answer to plaintiff's affidavit and motion for leave to issue execution. From the clerk's order allowing execution to issue, the defendants appealed.
The feme defendant seeks to set aside the judgment on the ground that she was fraudulently misled by her husband. Final judgment had been rendered in May, 1888, and that decree could not, at that late day, be attacked for fraud in the original, but only by instituting an independent action. Carter v. Rountree, 109 N.C. 29; Smith v. Fort, 105 N.C. 446.
The judge below found the facts material to a determination of her appeal from his refusal to set aside the judgment. It appeared from his findings that the judgment was final, and it followed as a conclusion of law that it could not be vacated on motion in the original cause. Conceding the truth of all that was alleged in her affidavit, she must still seek her remedy, if she has suffered any wrong, in a new action. England v. Garner, 84 N.C. 212; ibid., 90 N.C. 197.
Affirmed.
(93)