Mutual Reserve Fund Life Ass'n v. Scott

• Decision Date: 04 October 1904
• Parties: MUTUAL RESERVE FUND LIFE ASS'N v. SCOTT.
• Court: North Carolina Supreme Court

48 S.E. 581

136 N.C. 157

MUTUAL RESERVE FUND LIFE ASS'N v. SCOTT.

Supreme Court of North Carolina

October 4, 1904

Appeal from Superior Court, Craven County; O. H. Allen, Judge.

Action by the Mutual Reserve Fund Life Association against S. H Scott to set aside a judgment. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

An allegation in a bill to set aside a default judgment that the witness on whose evidence the verdict at the inquiry was obtained was not sworn was insufficient to show fraud per se but constituted a mere error, which was waived by not being excepted to.

J. W Hinsdale & Son and Shepherd & Shepherd, for appellant.

W. W. Clark, for appellee.

CLARK C.J.

This is a civil action to set aside a judgment on the grounds of fraud, and, secondly, that service of summons was made only upon James R. Young, Insurance Commissioner, though the defendant in the judgment (the plaintiff in this action) had revoked its letters of attorney which had been filed with the Insurance Commissioner, as required by the act of assembly "to regulate fire insurance and other companies," ratified March 6, 1899 (Pub. Laws 1899, p. 147, c. 54). This service was held good in a case by this plaintiff presenting the same point (Biggs v. Life Ass'n, 128 N.C. 5, 37 S.E. 955), which was reviewed and reaffirmed in another case brought up by this appellant (Moore v. Life Ass'n, 129 N.C. 31, 39 S.E. 637). It does not appear, even, that the plaintiff herein did not appear in the action in which this judgment was taken, but inferentially that it did, for the second ground of relief set out is that "the plaintiff herein, under advice of counsel, made default in said action, and did not discover that the judgment was procured by the false complaint and the unsworn statement of the attorney of said Scott," based upon the statements made to him by said Scott, until about the last of January, 1904. It appears from the complaint in said former action, filed as an exhibit to the complaint herein, that the judgment was obtained by default upon a duly verified complaint. If there was mistake, surprise, or excusable neglect, it is not shown by the averments in this action. Besides, relief on such ground cannot be had now by an independent action, but only by a motion in the cause under Code, § 274. Morrison v. McDonald, 113 N.C. 327, 18 S.E. 704. If the party failed to make such motion in a year, he cannot have relief by an independent action. Walker v. Gurley, 83 N.C. 429. If the defendant had never been served with process, nor appeared in the action, the judgment could be treated as void without any direct proceeding to vacate it. Condry v. Cheshire, 88 N.C. 375. An irregular judgment can be set aside by motion in the cause by a party thereto at any time; not by an independent action. Everett v. Reynolds, 114 N.C. 366, 19 S.E. 233, and other cases cited in Clark's Code (3d Ed.) p. 323. On the allegations, however, it appears that the judgment was regularly taken by default and inquiry, and at a subsequent term judgment was had upon a verdict upon the inquiry.

The...