Smallwood v. . Trenwith

Decided February 5, 1892

Supreme Court of North Carolina · decided 1892-02-05

MotioN to set aside a judgment as to the feme defendant, heard at Fall Term, 1891, of Craven Superior Court, before Bryan, J. The summons in the action issued December 27tb, 1887, and judgment was rendered for the plaintiff and against the defendants at May Term, 1888, for the possession of the land described in the complaint. Execution issued on August 13th, 1891, after service of notice of motion lor execution on June 19th, 1891.

Cited by 1 later decisions — most recently November 1925

Good law ✅— No negative treatment on recordhow we know

Decided 1892-02-05

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Avery, J.

¶1 after stating the case: The feme defendant seeks to set aside the judgment on the ground that she was fraudulently misled by her husband. Final judgment had been rendered in May, 1888, and that decree could not, at that late day, be attacked for fraud in the original, but only by instituting an independent action. Carter v. Rountree, 109 N. C., 29; Smith v. Fort, 105 N. C., 446.

¶2 The Judge below found the facts material to .a determination of her appeal from his refusal to set aside the judgment. It appeared from his findings that the judgment was final, and it followed as a conclusion of law that it could not be vacated on motion in the original cause. Conceding the truth of all that was alleged in her affidavit, she must still seek her remedy, if she has suffered any wrong, in a new action. England v. Garner, 84 N. C., 212; Ibid, 90 N. C., 197.

¶3 There is no error, and the judgment is

¶4 Affirmed.