#### F. FOWLER v. E. FOWLER.

(Filed 25 November, 1925.)

1. Courts — Judgments—Inherent Powers.

At common law, the power to vacate judgments contrary to process of courts apparent upon the record, is inherent in the court rendering it.

3. Judgments — Service—Summons'—Procedure—Motions.

A judgment procured contrary to the course and practice of the courts, is voidable, and when made to appear, the court rendering it may set it aside, on motion in the cause requiring reasonable promptness and ordinarily a show of merit.

3. Same — Divorce—Publication of Service — Statutes—Affidavits.

The requirements of our statute, C. S., 484, are mandatory, and must be followed in good faith in actions of divorce to obtain an order of publication of service of summons, and where the plaintiff in divorce fails to make affidavit that the defendant cannot after due diligence be found in ■the State, knowing that she was residing in another county therein, subject to personal service, and the summons has been returned endorsed that defendant cannot be found within the county'of its issuance, etc., the judgment rendered therein by the Superior Court is void, and may be vacated by the court granting it within its inherent powers.

4. Same — Death—Property Rights.

Where the plaintiff in divorce has obtained a judgment void for irregularity in the service of summons, the same may .be set aside on motion in the cause made after the defendant’s death, when property rights are involved.

Appeal by E. Fowler, movant, from order of Lane, J., April Term, 1925.

Reversed.

Tbe 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 5 November, 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 *537County 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 18 May, 1921, for a time lived together as man and wife in Wake County, in the city of Ealeigh; that subsequently the said F. Fowler separated himself from his wife, E. Fowler, and came to reside in the county of Union; and 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. 0., 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 Ealeigh, 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 6 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 Ealeigh, N. C., and has been residing at Ealeigh, N. 0., ever since her marriage to the plaintiff in *5381921. Service of summons was secured by publication. Tbe 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.”

8. W. Eason and Walter Ciarle for E. Fowler, defendant, movant.

W. B. Love and Vann & Millihen for Clifford Fowler, executor of estate of F. Fowler (F. J. or Franlc Fowler), deceased.

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, 5 ed., part sec. 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 *539is not in fact a judgment, because entered without authority. Clark v. Homes, 189 N. C., 708. 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; Cox v. Boyden, 167 N. C., 320; Becton v. Dunn, 137 N. C., 559.

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; Everett v. Reynolds, 114 N. C., 366; Jeffries v. Aaron, 120 N. C., 167; Clement v. Ireland, 129 N. C., 221; Ins. Co. v. Scott, 136 N. C., 157; Duffer v. Brunson, 188 N. C., 789; Bilis v. Bilis, ante, 418.

“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, 5 ed., part sec. 218. Williamson v. Hartman, 92 N. C., 236; Stancill v. Gay, 92 N. C., 455; Scott v. Life Association, 137 N. C., 515; Glisson v. Glisson, 153 N. C., 185; Currie v. Mining Co., 157 N. C., 209.

“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 sec. 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.” Parson v. Weis, 144 Cal., 410, 77 Pac., 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 *540remedy in this case, if any sbe bas, is by a separate action to set aside tbe judgment and not by a motion in tbe original cause.”

In tbe statement of ease on appeal “tbe motion to set aside tbe decree of divorce was based upon tbe lack of service, fraud, and tbe other grounds set forth in tbe motion in this cause,” etc.

One of tbe assignments of error “When there is no service of process.” From tbe record tbe affidavit for publication of summons is as follows: “F. Fowler, plaintiff in tbe above entitled action, being duly sworn, says, that tbe above named defendant is a nonresident; that if she is a resident of tbe State, sbe keeps herself concealed so summons cannot be served on her; that tbe plaintiff bas a good cause of action against tbe defendant; that this is an action started by tbe plaintiff against tbe defendant to obtain an absolute divorce, and to have tbe bonds of matrimony heretofore existing between tbe parties dissolved; that summons in this action was duly issued and tbe sheriff of Mecklenburg County, bas returned said summons, endorsed thereon 'the defendant, after due diligence cannot be found in Mecklenburg County, and after due and diligent search, defendant cannot be found in tbe State of North Carolina.’ ”

C. S., 484, is as follows: “Where a person on whom tbe service of tbe summons is to be made cannot, after due diligence, be found in tbe State, and that fact appears by affidavit to tbe satisfaction of tbe court, or a judge thereof and it in like manner appears that a cause of action exists against tbe defendant in respect to whom service is to be made, or that be is a proper party to an action relating to real property in this State, such court or judge may grant an order that tbe service be made by publication of a notice in either of tbe following cases: . . . (5) Where tbe action is for divorce,” etc.

Tbe affidavit of F. Fowler does not follow tbe plain language of tbe statute to obtain service by publication and nowhere does be make oath that tbe defendant E. Fowler “cannot after due diligence be found in tbe State.” This is mandatory. If, as tbe record discloses in this case, tbe defendant at tbe time was in tbe State without this oath plaintiff could not be indicted for perjury. Tbe affidavit embodying this material allegation is tbe very cornerstone to obtain jurisdiction by publication. This all-important material allegation was omitted from tbe affidavit contrary to tbe very wording of tbe statute.

In Davis v. Davis, 179 N. C., 188, this question is discussed and tbe Court said: “Tbe service of summons by publication is fatally defective, in that it does not conform to tbe requirements of tbe statute. Tbe foundation and first step of service by publication is an affidavit that 'the person on whom tbe summons is to be served cannot, after due diligence, be found within tbe State.’ , . . Everything necessary to *541dispense with, personal service of tbe summons must appear by affidavit. Tbe mere issuing of summons to tbe sheriff of tbe county of Pasquotank, and bis endorsement upon it tbe same day after it came to band, tbat tbe 'defendant is not to be found in my county/ is no compliance with tbe law; for it might well be tbat tbe defendant was at tbat time in some other county in tbe State, and tbat tbe sheriff knew it, or by due diligence, could have known it, and make upon tbe defendant a personal service of tbe summons. Every principle of law requires tbat this personal service should be made, if compatible with reasonable diligence.” Sawyer v. Drainage District, 179 N. C., p. 182.

It is well-settled tbat for fraud perpetrated on a party to tbe action tbe judgment must be attacked by an independent action. Bost v. Lassiter, 105 N. C., 490; Sharp v. R. R., 106 N. C., 308; Smallwood, v. Trenwith, 110 N. C., 91; Uzzle v. Vinson, 111 N. C., 138; Gallop v. Allen, 113 N. C., 25; Simmons v. Box Co., 148 N. C., 344; Craddock v. Brinkley, 177 N. C., 125.

Clark, C. J., in Simmons v. Box Co., supra, at p. 345, said: “In tbe well-known case of Harrison v. Harrison, 106 N. C., 282, it was held tbat when there was no service of process tbe judgment could be set aside by motion in tbe cause. 'Where it appears from tbe record tbat a person was a party to an action, when in fact be was not, tbe legal presumption tbat be was a party is conclusive until removed by. a correction of the record itself, by a direct proceeding for tbe purposed Sumner v. Sessoms, 94 N. C., 377. This means by motion in tbe cause, for tbe court corrects tbe record to speak tbe truth. To same purport, Doyle v. Brown, 72 N. C., 393, where it is said: Where tbe summons was not served on defendant and be did not enter an appearance nor have any knowledge of tbe action until after default judgment, tbe judgment is void and will be set aside, on motion.’ ” Long v. Rockingham, 187 N. C., p. 209.

In Craddock v. Brinkley, supra, p. 127, it is said: “It is true tbat when tbe ground alleged for setting aside tbe judgment is not based upon fraud, tbe proper remedy is by motion in tbe cause, but we have no distinct forms of action now, and it has been held tbat when a party by mistake brings an independent action when bis remedy is by motion in tbe original cause, tbe court may, in its discretion, treat tbe summons and complaint-as a motion. Jarman v. Saunders, 64 N. C., 367. It is true tbat an independent action, when brought in another county, cannot be treated as a motion in tbe cause (Rosenthal v. Roberson, 114 N. C., 594), but tbat does not obtain here as tbe proceeding is in tbe same county.”

In tbe case at bar defendant, movant, relies on several motions. We think a motion in tbe cause tbe proper procedure, as there was no service of process and tbe attempted service a nullity and tbe judgment void.

*542Defendant, movant, contends that property rights are involved in this case and a decree of divorce may be set aside after the death of one of the parties.

Executor of plaintiff contends that: “Webber v. Webber, 83 N. C., 280, is cited by the appellant defendant, movant,” and says: “There the plaintiff died during the term. Issues were found in his favor. The opinion in that case opens with the statement by Smith, G. J.: ‘It is clear that the action does not survive, and consequently abates, unless prevented' by the rule of relation, whereby all judicial proceedings during a term are treated as if they took place on the first day of the term.’ ” But in the conclusion of the opinion, this is said (p. 284): “It is suggested that the action for a dissolution of the marriage tie, the end and solution of which are consummated by death, rendering a judgment needless, does not fall under the control of a fiction adopted for other and different purposes. While the suggestion is not without force, we can find no legal ground for its exemption from the operation of a principle applicable to all other actions.”

We think the great weight of authority sustains the position that the decree can be vacated under the facts and circumstances in this case.

19 C. J., 169, sec. 421, on Divorce, states: “Yet by the weight of authority, for the purpose of establishing property rights the court may vacate a decree, even after complainant’s death, where it was obtained by fraud, apd imposition on the part of the complainant, or without due service of ‘process(Italics ours.)

This case discloses a flagrant abuse of the process of the court. The plaintiff, now deceased, knowing that his wife was alive and in the State, starts a divorce proceeding in a distant county in the State, different from the one he lived in. He makes no affidavit, as is required by the statute where the parties are nonresident to get jurisdiction in this ■State, that the wife, the defendant, “cannot, after due diligence, be found in the State.” He omits from his oath this material allegation, and obtains an. order to give notice by publication. This is published in a paper of small and limited circulation. Only the initials of him and his wife are set forth in the action. He makes serious charges against his wife, as taking place in South Carolina — beyond this jurisdiction, and obtains a decree of divorce without any knowledge on her part to defend her character. The only knowledge that came to her was when he was killed by his paramour and the article in the newspaper set forth this divorce unknown before to her. If, under the facts and circumstances here disclosed, the courts could not protect this wife, justice would be dead.

The judgment below is

Reversed.