Stocks v. . Stocks

Walker, J., after stating the facts as above: This case naturally divides itself into three propositions: 1. It does not distinctly appear from tbe complaint in tbis action wbetber tbe fact, wbicb is alleged herein — that no summons or other process was served on tbe defendant in tbe second of tbe three actions, it being tbe one which was brought to set aside tbe judgment in tbe dower suit — is shown on tbe face of tbe record in that case. Where it appears tba’t summons has been served, when in fact it has not been, the remedy is by motion in tbe cause to set set aside tbe judgment, and not by an independent civil action, but when it appears on tbe record that it has not been served, tbe judgment is open to collateral attack. Doyle v. Brown, 72 N. C., 393; Whitehurst v. Transportation Co., 109 N. C., 342; Carter v. Rountree, ibid., 29; Rutherford v. Ray, 147 N. C., 253; Rackley v. Roberts, 147 N. C., 201; Bailey v. Hopkins, 152 N. C., 748; Hargrove v. Wilson, 148 N. C., 439; Glisson v. Glisson, 153 N. C., 185; Barefoot v. Musselwhite, ibid., 208. There is an inadvertent expression in Doyle v. Brown, supra, at page 366, where it is said: “But tbe defendant’s error is misunderstanding tbe scope of tbe action. It is an action in tbe nature of a bill in equity to vacate tbe said decree.” Tbe mistake is in calling it “an action,” when in fact is was but a motion in tbe cause, as will appear from tbe record, and tbe statement of tbe case, wbicb begins with these words, “Motion to set aside a decree,” etc. With tbis correction tbe case is in perfect harmony with all tbe other decisions of tbis Court upon tbe subject. But tbis point is not so material, as there are other allegations, in tbis complaint, wbicb confer jurisdiction of tbe case, and, too, it may hereafter appear that tbe record of tbe other does show that there was no service on, or appearance, or pleading by, tbe defendant in that case, who is plaintiff in tbis. 2. Tbe plaintiff alleges that tbe judgment in tbe second action, wbicb was brought to set aside tbe dower proceedings, was procured by fraud, wbicb is set out in tbe complaint, tbe gist of it being that tbe defendant in tbis suit deceived her by a false statement to tbe effect that, while tbe action bad been started, it bad been wholly abandoned and withdrawn; that she need pay no attention to it, or give herself any anxiety concerning it, as she could not be harmed by it in tbe least, and thereby lulled her into a sense of security; that believing she was ignorant of what be was doing, or unconscious of what was going on at bis instigation, be proceeded further in tbe action and finally obtained what purported to be a judgment,.which be procured to be docketed, and afterwards entered upon tbe dower land and claimed tbe possession and ownership of it *289 under and by virtue of tbis false and fraudulent judgment. So tbat the judgment in the second action, and the proceedings leading up to it are attacked, and asked to be set aside for the fraud practiced upon her. This equity can be set up in an independent action, as is done here. Hargrove v. Wilson, and cases supra. 3. But there also are sufficient allegations to show that the judgment and the proceedings in that second action rest, as a cloud, upon the plaintiffs title to her dower, and her equity, or right to have it removed, and the true right, or title, determined and adjudicated, can also be asserted in a separate and independent action. Hargrove v. Wilson, 148 N. C., 439; Bailey v. Hopkins, 152 N. C., 748; Rackley v. Roberts, supra. It is elementary learning that a decree of a court having jurisdiction in a proceeding, in all respects regular on its face as to parties, cannot be attacked collaterally. It may be successfully impeached for fraud in an independent action brought for the purpose, when sufficient allegations of fraud are made and issues framed upon such allegations are submitted to a jury, and the fraud is established by the verdict. Hargrove v. Wilson, 148 N. C., 439, 440, and cases cited. A judgment, if invalid, would be such a cloud on the title, or such a direct menace to it, as to fall within the provisions of Revisa of 1905, sec. 1589, and Public laws of 1893, as amended by Public laws of 1903, ch. 763. These acts being remedial in their nature, should have a liberal construction in order to execute fully the legislative intention and will. Christman v. Hilliard, 167 N. C., 4. It is not necessary to construe the deed of Jesse A. Stocks to Redding S. Stocks at this time, as defendant is estopped by the judgment in the dower suit to question plaintiffs title to the dower land, if that judgmeut stands. Gay v. Stancell, 76 N. C., 369. We will therefore wait until the validity of the judgment is determined before deciding that question, as it may never again arise. Our conclusion is that the demurrer was properly overruled. The defendant will be allowed to answer the complaint. When all the facts are disclosed, upon the trial of the issues between the parties, the aspect of the case may be changed from what it now is, and other principles may have to be invoked. They do not arise at present, and we restrict ourselves- to those before us. Affirmed.