#### EARP v. MINTON.

(Filed April 25, 1905.)

Judgments — Collateral ,Attack — Fraud—Proper Remedy.

1. In an action to recover personal property, the plaintiff cannot collaterally attack for fraud in its procurement, a judgment under which the defendant claims and it was error to submit an issue as to such fraud.

2. When a judgment is attacked for fraud, the proper remedy is by a motion in the cause, if the action is pending; but, if it has been ended by final judgment, an independant action must be instituted.

*203ActioN by Dorinda Earp against L. L. Minton, beard 'by Judge W. R. Allen and a jury,-at tbe June Term, 1904, of tbe Superior Court of Wilkes County.

This was a civil action tried in tbe Superior Court upon appeal from tbe judgment of a justice of tbe peace. Tbe plaintiff alleges that she is tbe owner of a cow and that tbe defendant is in tbe wrongful and unlawful possession of her. Tbe defendant admits tbe possession of tbe cow but denies that bis possession is wrongful and unlawful and avers that be is an innocent purchaser for value. It appears from the record that tbe defendant purchased tbe cow from one Cra- _ nor, who came into possession of her by virtue of a judgment secured by him in an action brought before a justice of tbe peace against Dorinda Earp, tbe plaintiff in this action, to recover possession of tbe cow. In the present action this judgment was introduced and relied on by tbe defendant to establish bis right to tbe possession of tbe cow.

Tbe court submitted tbe following issues: 1. Is the plaintiff owner of tbe property in dispute ? Ans. Yes. 2. What was tbe value of tbe cow ? - Ans. $25. 3. Was tbe judgment upon which tbe defendant relies procured by fraud? Ans. Yes.

Erom a judgment for tbe plaintiff, tbe defendant appealed.

No counsel for tbe plaintiff.

Finley & Uendren for tbe defendant.

Brown, J.

Tbe defendant excepts to the submission of the third issue as to fraud in the procurement of the judgment in Cranor v. Earp and to the admission of certain testimony and parts of His Honor’s charge relating to that issue. The defendant’s ground of objection to the issue, the evidence and the charge is the same; that is that a judgment cannot be collaterally atacked for fraud, but it must *204be impeached, if at all, by an independent action. We do not deem it necessary to consider these exceptions separately. We think that His Honor committed error in submitting the issue to the jury, and it follows that the admission of evidence-and His Honor’s charge in regard thereto are likewise erroneous. It is well settled by this court that it is not permissible for a party to attack a judgment in a collateral proceeding on account of fraud. When a judgment is attacked for fraud the proper remedy is by a motion in the cause, if the action is then pending, but if it has been ended by final judgment, an independent action must be instituted. Carter v. Rountree, 109 N. C., 29; Smith v. Gray, 116 N. C., 311; Burgess v. Kirby, 94 N. C., 575.

In the case before us the judgment is attacked for fraud in its procurement. At most, it is only voidable for an irregularity not apparent. It is not such an irregularity as to render the judgment absolutely void, hence it cannot be attacked collaterally, but it must be impeached, if at all, by a separate proceeding instituted for that purpose. Burgess v. Kirby, supra; Neville v. Pope, 95 N. C., 346; Brittain v. Mull, 99 N. C., 483. If it is contended that the summons in the case of Cranor v. Earp was improperly or irregularly served, or that defendant was sick and could not attend the trial, her remedy was to move in that cause before the justice to set aside the judgment.-

We are of opinion that in submitting the issue as to fraud in the procurement of the judgment in Cranor v. Karp and admitting evidence and instructing the jury in regard thereto, His Honor committed error, for which there must be a

New Trial.