¶1DEFENDANT'S APPEAL. After stating the case: The questions presented in this record have all been practically decided on a former appeal in the cause and reported,152 N.C. p. 731. On that appeal it was held that the issue of fraud, having been decided against defendant on a motion made in the South Dakota court to set the judgment aside on that ground, defendant was precluded from raising a like question here. On this subject the former opinion is as follows:
¶2"This being the doctrine applicable on the facts as they now appear, the judgment of the Dakota court, as heretofore stated, denying the defendant's application to set aside the original judgment on the ground of fraud, will preclude all further inquiry on that question and render said judgment an estoppel of record as to all matters embraced in the pleadings which may be considered as material to its rendition," citing Turnage v. Joyner,145 N.C. 81; Manufacturing Co. v. Moore, 144 N.C. 527;Tuttle v. Harrell, 85 N.C. 456.
¶3There are no new facts in any way bearing on this position except the fact established that the statutes of South Dakota make provision substantially similar to our own in reference to setting aside a judgment for "mistake, surprise, or excusable neglect." As we endeavored to show on a former appeal, a motion to set aside a judgment by reason of facts alleged in this application would have been entertained at common law, and the statute puts no restrictions certainly on this power as formerly exercised in the common-law courts, except to require that the motion should be made within twelve months from the rendition of the judgment. In other respects the statutory provision contemplates and includes a motion on facts of the character presented in this hearing. Bronson v. Shulton,104 U.S. 410; Bennett v. Jackson, 34 W. Va. 62; Craig v. Worth,47 Md. 281.
¶4There is no error and the judgment must be affirmed. (53)
¶6PLAINTIFF'S APPEAL
¶7The plaintiff appeals, alleging errors in awarding the amounts allowed defendant in his counterclaim. These amounts consisted of alleged payments by defendant made since the rendition of the judgment as indicated in the verdict on the third issue, and amounts received by defendant or his agent from rents of property in South Dakota, for which plaintiff was accountable, as ascertained and determined in the fourth issue. These amounts were largely dependent on disputed matters of fact. They were not allowed or considered in the proceedings in South Dakota by which the original judgment was obtained. On the facts as now presented, they come clearly within the principle sustained in the case of Tyler v. Capeheart,125 N.C. 64, stated as follows:
¶8"1. A judgment is decisive of the points raised by the pleadings, or which might be properly predicated upon them; but does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiff might have joined, but which in fact are neither joined nor embraced by the pleadings.
¶9"2. Although the present cause of action might have been set up as a second cause of action in a former suit, but was not, and was not actually litigated, and was not `such matter as was necessarily implied therein, the plea of res judicata will not avail.'"
¶10We find no error that would justify us in disturbing the judgment, and the same is in all respects affirmed.
¶11No error.
¶12(54)