Smith v. . Fort

*452 MekrimoN, C. J. after stating the facts: The Court below held properly that the judgment rendered in the action at' the Fall Term, 1877, of the Court was final. It not only purported to be such a judgment, but it was such in its nature and effect. The Court had jurisdiction of the parties to, and the subject-matter of, the action, and in the orderly course of procedure disposed of and put an end to the whole matter embraced by the litigation. The counsel for the appellants insisted, on the argument, that the purchase-money of the land was not paid before the commissioner executed his deed to the purchaser, as the order of the Court required, or at all, and there could be no final judgment until this should be paid. If this be granted as true, and we do not decide that it is or is not- — -it appears from the.record — the judgment itself — that the Court understood and acted upon the supposition that it had been paid. The judgment purports and undertakes to dispose of the fund arising from the sale of the land, as well as other funds embraced by it. The proceedings in the action were not irregular, otherwise than as fraud may have been perpetrated by the commissioner, or some other person in some way connected with the action, that led the Court to make some material order or judgment it would not have made if the facts had appeared. If the Court might take notice of the deed of the commissioner made to Deans, the purchaser, in connection with the judgment, no substantial irregularity appears in or by it. It is not very formal, but it is not, upon its face, void; taken in connection with the order confirming the sale. Any fraud or mistake affecting it does not appear in it. It recites the substance of the order of sale — that a sale was made — the order of coiffirmation of the same, and that it was made in consideration of the sum of money bid for the land. These recitals, taken together, fairly imply that the purchase-money had been paid — they do not suggest the *453 contrary, especially when taken in connection with the final judgment. There was not, therefore, such irregularities in the orders and judgments, interlocutory or final, or any of them, or in the proceedings leading to them, as might be corrected by a simple motion in the cause. The ground of the plaintiffs’ motion seems to be that the deed and judgment are fraudulent. If so, their remedy is not by motion, but, as this action is ended, by an independent action, alleging therein the fraud and demanding appropriate relief as against all parties as to whom and against whom they have a cause of action by reason of such fraud. This is well settled. Covington v. Ingram, 64 N. C., 123; Thaxton v. Williamson, 72 N. C., 125; Peterson v. Vann, 83 N. C., 118; England v. Garner, 84 N. C., 212; Fowler v. Poor, 93 N. C., 466; Williamson v. Hartman, 92 N. C., 236; Mode v. Coggin, 101 N. C., 366. The Court, in this case, said that, “in its discretion it considers the plaintiffs’ motion as a new action,” and it proceeded to hear and deny the motion. We think it should not have done so. The plaintiffs suggested, by informal motion, only a cause of action, distinct from that alleged in this action, that ought to be the subject of a new and independent action. New parties were made to the motion by simple notice — the motion was made informally ore terns— there was no petition or complaint filed alleging the grounds of the motion, or alleging a cause of action in a supposed new or independent action, and there was no answer or demurrer to a supposed complaint. A serious suggested cause of action, involving numerous controverted questions of fact and law, was heard and disposed of by simple motion! Such procedure and practice are unwarranted by the Code of Civil Procedure, or any statute, and we are sure that it ought not to be allowed to prevail. No doubt the Court was misled by what is said in Stradley v. King, 84 N. C., 635. *454 In that case, a motion in the cause was improperly made in the action, and the Court treated it as an independent action; but there the Court said “an impeaching complaint, in the form of a petition, is filed, and the answer thereto put in by the administrator, evidence is offered and heard, and, without any demand for a jury or objection to the course of the Judge in passing upon the facts, he finds them, and thereon bases his judgment. All the requirements of a new and independent action seem to meet in the course pursued to bring up the matter complained of for a rehearing.” In that case, the parties, in substance, constituted a new action before the Court, observing such authorized method of procedure as presented the pleadings of the parties of record, and the action of the Court thereupon. That could be done only by consent, and while such loose practice msij be tolerated, it ought not to be encouraged. In the present case there was no pleading The plaintiffs insisted upon what they deemed their grounds of motion in the cause — they did not allege or attempt to treat their grounds of complaint as a cause of action, growing out of fraud in the judgment and the deed. The counsel of the appellants has argued the case here as a motion in the cause to correct irregularities. It is true, the parties did not except specially to the course of informal procedure adopted by the Court, but we may, as ire do, ex mero onotu, take notice of it and declare that it cannot be allowed to prevail. Long v. Jarratt, 94 N. C., 443. The Court should have simply dismissed the plaintiffs’ motion, leaving them to adopt such other remedy as counsel might advise. The judgment must be reversed, and judgment entered dismissing the motion at the cost of the parties making it. Error.