Stokley v. Stokley, 751DC1023

• Citation: 30 N.C.App. 351,227 S.E.2d 131
• Decision Date: 04 August 1976
• Docket Number: No. 751DC1023,751DC1023
• Court: Court of Appeal of North Carolina (US)
• Parties: Charles Walter STOKLEY, Plaintiff, v. Mary Elizabeth Bray STOKLEY, Defendant. Mary Elizabeth Bray STOKLEY, Petitioner, v. Lennie L. HUGHES, Administrator de bonis non of the Estate of Charles WalterStokley, Respondent, and Nancy M. Jernigan, Respondent.

Page 131

227 S.E.2d 131

30 N.C.App. 351

Charles Walter STOKLEY, Plaintiff, v. Mary Elizabeth Bray STOKLEY, Defendant.

Mary Elizabeth Bray STOKLEY, Petitioner, v. Lennie L. HUGHES, Administrator de bonis non of the Estate

of Charles WalterStokley, Respondent,

and

Nancy M. Jernigan, Respondent.

No. 751DC1023.

Court of Appeals of North Carolina.

Aug. 4, 1976.

Jennette, Morrison & Austin, by C. Glenn Austin, Twiford, Abbott, Seawell, Trimpi & Thompson, by C. Everett, Thompson, Elizabeth City, for petitioner.

White, Hall, Mullen & Brumsey, by John H. Hall, Jr., Elizabeth City, for respondent Nancy M. Jernigan.

MARTIN, Judge.

The motion in the cause was made pursuant to Rule 60(b)(3), (4), and (6), Rules of Civil Procedure. The rule in pertinent part reads as follows:

'(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;

(4) The judgment is void;

(6) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.'

Appellant has conceded that an action grounded on Rule 60(b)(3) must be brought within one year. Thus, we consider the second ground upon which appellant relies, to wit, Rule 60(b)(4), 'The judgment is void.'

The court found that the judgment roll in the Edgecombe County divorce action was in all respects regular on its face. No exception was made to this finding of fact. In Carpenter v. Carpenter, 244 N.C. 286, 295, 93 S.E.2d 617, 625--626 (1956), Justice Bobbitt (later Chief Justice) speaking for the Court, said, '. . . As against challenge on the ground of false swearing, by way of pleading and of evidence, Relating to the cause or Ground for divorce, a divorce decree, in all respects regular on the face of the judgment roll, is at most Voidable, not void.'

The crucial question remaining is whether the matters alleged in appellant's motion, if taken as true, amount to 'a fraud upon the court'.

The motion is devoid of any allegation that appellant was prevented from fully participating in the pending divorce action. To the contrary, it is stipulated and otherwise admitted that appellant was personally served with copy of summons and copy of complaint in the Edgecombe County divorce action on 10 August 1964. Consequently, the instant case does not come within those cases when jurisdiction was purportedly acquired by false affidavit and service of process by publication. Woodruff v. Woodruff, 215 N.C. 685, 3 S.E.2d 5 (1939); Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945).

All the facts alleged in the motion are drawn within the classification of intrinsic fraud. In fact, appellant's fourth allegation classifies the fraud as 'intrinsic' in the following language: 'That the judgment in said case was obtained by perjured testimony and false evidence resulting in intrinsic fraud on the Court and the defendant.'

The final judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time...