Fowler v. Fowler

• Decision Date: 25 November 1925
• Docket Number: 457.
• Citation: 130 S.E. 315,190 N.C. 536
• Parties: FOWLER v. FOWLER.
• Court: North Carolina Supreme Court

130 S.E. 315

190 N.C. 536

FOWLER v. FOWLER.

No. 457.

Supreme Court of North Carolina

November 25, 1925

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Action for divorce by Frank Fowler against Etta Fowler. Judgment for plaintiff was entered, and thereafter defendant presented a motion to have the judgment set aside, to which Clifford Fowler, as executor of the estate of Frank Fowler, deceased filed an answer. From an order denying the motion, defendant appeals. Reversed.

Effort to impeach judgment in prior action or proceeding is collateral when it is based on allegations of facts not apparent on face of record.

The court below rendered the following judgment:

"This cause coming on to be heard on motion of the defendant, in the cause heretofore tried in Mecklenburg county, entitled 'F. Fowler v. E. Fowler,' for divorce, said motion being to set aside the judgment in that case rendered on November 5, 1924, in the superior court, alleging as ground for the motion that the order of publication of summons was procured from the clerk of the superior court of Mecklenburg county by false and fraudulent affidavits, and for other causes as shown by the motion and petition filed therein, and the motion being heard upon affidavits filed:

The court finds the facts to be that F. Fowler, the plaintiff in that action, and E. Fowler, were married on the 18th day of May, 1921, and for a time lived together as man and wife in Wake county, in the city of Raleigh; that subsequently the said F. Fowler separated himself from his wife, E. Fowler and came to reside in the county of Union; that while a resident of Union county he instituted an action for divorce in the superior court of Mecklenburg county; that summons by publication was made in a newspaper called the Charlotte Herald, published in the city of Charlotte, N. C., a weekly paper of very limited circulation; that the order of publication of summons was procured from the clerk of the superior court of Mecklenburg county upon the affidavit as set out in the record of that case; that no attempt was made to secure personal service as appears in the record; that at the time of publication of the notice of summons, the said E. Fowler was living in the county of Wake, in the city of Raleigh, and at the same house where she was living at the time that F. Fowler separated from her.

The court further finds that the first knowledge which the defendant, E. Fowler, had of a pendency of any such suit or a judgment having been rendered therein, was in February, 1925, when she read in a newspaper an account of the killing of her husband in Union county, and a statement made in the paper that he had been recently divorced from her by a decree of the court in Mecklenburg county.

The court further finds that the affidavit in which said F. Fowler swore that his wife was a nonresident of the state, and that she was keeping herself concealed within the state to avoid service of summons, was false.

Upon these facts, the court being of the opinion that these matters and things constitute a fraud upon the defendant, E. Fowler, holds that the proper remedy in this case, if any she has, is by a separate action to set aside the judgment, and not by a motion in the original cause.

It is therefore ordered and adjudged that the motion is overruled."

The statement of case on appeal is as follows:

"Judgment of absolute divorce was rendered in an action entitled 'F. Fowler, Plaintiff, v. E. Fowler, Defendant,' in the superior court of Mecklenburg county on the 6th day of November, 1924. This judgment granted an absolute divorce to the plaintiff, F. Fowler, or Frank Fowler, against his wife, E. Fowler, or Etta Bagwell Fowler. There was no service of summons on the defendant, who resided in Raleigh, N. C., and has been residing at Raleigh, N. C., ever since her marriage to the plaintiff in 1921. Service of summons was secured by publication. The plaintiff, F. Fowler, was killed in February, 1925, by one Bertha Case, with whom he was living in adultery in Union county. Notices of the murder of Frank Fowler were published in the newspapers with the statement that he had secured a divorce from his wife, E. Fowler, or Etta Fowler. Upon seeing said notices, the defendant, E. Fowler, or Etta Fowler, made a motion in this cause to set aside the decree of divorce which had been entered in the superior court of Mecklenburg county. The motion to set aside the decree of divorce was based upon the lack of service, fraud, and other grounds set forth in the motion in this cause. The plaintiff, or respondent, executor of F. Fowler, filed a special appearance upon the ground that the court was without jurisdiction to pass upon and determine the alleged motion. Upon overruling the special appearance, the respondent filed an answer. Upon the motion and answer and affidavits on both sides, the court found the facts as set forth in his judgment, and held that a motion in the cause is not the proper remedy, but that the proper remedy is a separate action to set aside the judgment of divorce. From this judgment, the movant, Mrs. E. Fowler, or Mrs. Etta Fowler, appealed to the Supreme Court."

Other relevant facts will be set forth in the opinion.

The defendant's assignments of error are as follows:

"That the court erred in holding that a motion in the cause was not the proper remedy in this case, for that a motion in the cause is always the proper remedy: (1) When there is no service of process; (2) where the affidavit for publication of summons is false and defective; (3) where there is fraud upon the court in securing judgment; (4) for excusable neglect under C. S. § 600."

S. W. Eason, of Raleigh, and Walter Clark, of Charlotte, for appellant.

W. B. Love and Vann & Milliken, all of Monroe, for appellee.

CLARKSON J.

The power to vacate judgments was conceded by the common law to all its courts. Within its proper limitations, it is a power inherent in all courts of record and independent of statute. It may be exercised by the court either of its own motion or suggestion by a party or interested person. At common law this power was exercised in a great variety of circumstances and subject to various restraints. 1 Freeman on Judgments (5th Ed.) part of section 194.

There is a vast difference between void and voidable judgments. It is a universally accepted rule that a judgment which is absolutely void may be vacated by the court in which it is tendered. It is at all times a nullity. A court may strike from its record what purports to be, but is not in fact, a judgment, because entered without authority. Clark v. Homes, 189 N.C. 708, 128 S.E. 20. A judgment void upon its face is subject to both direct and collateral attack. A judgment may be vacated for prejudicial irregularity, and is a voidable judgment. It is good and valid until set aside. The power to vacate judgments on this ground is not dependent on statute, but is inherent in the court. In order to such relief in case of judgments voidable for irregularity, reasonable promptness and ordinarily a show of merit is necessary. Gough v. Bell, 180 N.C. 268, 104 S.E. 535; Cox v. Boyden, 167 N.C. 320, 83 S.E. 246; Becton v. Dunn, 137 N.C. 559, 50 S.E. 289.

An irregular judgment can be set aside by direct attack motion in the cause by a party thereto--within any reasonable time and ordinarily showing merit. Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Everett v. Reynolds, 114 N.C. 366, 19 S.E. 233; Jeffries v. Aaron, 120 N.C. 167, 26 S.E. 696; Clement v. Ireland, 129 N.C. 221, 39 S.E. 838; Insurance Co. v. Scott, 136 N.C. 157, 48 S.E. 581; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7.

"A judgment is said to be irregular whenever it is not entered in accordance with the practice and course of proceeding where it is rendered. The irregularities which have been treated as sufficient to justify the vacations of judgments are very numerous, and it is not possible to prescribe any test by which, in all jurisdictions, to determine whether or not a particular irregularity is such as to require the vacation of a judgment. When the irregularity does not go to the jurisdiction of the court, its action will be largely controlled by the promptness with which the application is made, and by the consideration whether or not the irregularity is one which could have operated to the prejudice of the applicant." 1 Freeman on Judgments (5th Ed.) part of section 218; Williamson v. Hartman, 92 N.C. 236; Stancill v. Gay, 92 N.C. 455; Scott v. Life Ins. Co., 137 N.C. 515, 50 S.E. 221; Glisson v. Glisson, 153 N.C. 185, 69 S.E. 55; Currie v. Mining Co., 157 N.C. 209, 72 S.E. 980.

"Many decisions emphasize as a feature of collateral attack its attempt to step outside the record of the former judgment; the rule of such decisions is that any effort to impeach a judgment in a prior action or proceeding is collateral when it is based on allegations of facts not apparent on the face of the record, but wholly dehors the record." 1 Freeman, supra, part of section 306.

In a California case it was said:

"When we speak of a direct attack upon the judgment we usually refer to some proceeding in the action in which it was rendered, either by a motion before the court which rendered it or an appeal therefrom, whereas an attempt to impeach the judgment by matters dehors the record is a collateral attack." Parsons v. Weis, 144 Cal. 410, 77 P. 1007.

An attack upon a judgment can be either by motion in the cause or separate independent action. The court below held "that the proper remedy in this case, if any she has, is by a separate action to set aside the judgment and not by a motion in the original cause." In the statement of...