majority">Connor, J.

The defendant on her appeal to this Court relies chiefly on her contention that there was error in the refusal of the trial court to sustain her plea in abatement on the ground that since the commencement of the action the original defendant, H. S. Poole, has died, and that at the date of his death “he had no property in his name.” The plea in abatement was filed after the defendant had been allowed to intervene in the action, on the ground that as the widow of H. S. Poole she had an interest in the property, real and personal, which he owned at his death. After she had been made a party defendant, she filed an answer to the original complaint, in which she denied the allegations therein which constitute the cause of action on which the plaintiff prays for relief. By pleading to the merits, after the death of the original defendant, and after his administrator had been made a party defendant, the appealing defendant waived her right, if any she had, to file a plea in abatement on the ground that the original defendant had died since the commencement of the action. A special plea in abatement must ordinarily be made before pleading to the merits; otherwise, the right to file such plea is waived. See Honig v. Hawa, 194 N. C., 208, 139 S. E. 222; Ins. v. R. R., 179 N. C., 290, 102 S. E. 504; Fort v. Penny, 122 N. C., 230, 29 S. E., 362. 1 C. J., 5, sec. 195.

In Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315, it is said:

“It is well settled that for fraud perpetrated on a party to the action, the judgment must be attacked by an independent action.” This statement of the law applicable to this action is supported by numerous authorities cited in the opinion of Olarhson, J.

This is an independent action in which the judgment in the action entitled, “H. S. Poole v. Annie Willcox Poole,” is attacked for fraud perpetrated by the plaintiff in that action against the defendant therein. The action was begun before and was pending at the death of the original defendant, H. S. Poole. After his death, his administrator, on motion of the plaintiff, was made a party defendant. He filed an answer to the original complaint, in which he denied the allegations of the complaint. He did not file a plea in abatement, or otherwise contend that *541the action did not survive as to him. He has not appealed from the judgment setting aside and vacating the judgment in H. S. Poole v. Annie Willcox Poole on the verdict in the action which sustains the allegations of the complaint.

If it be conceded as contended by the appealing defendant, and as held in other jurisdictions (see Fowler v. Fowler, supra), that this action abated upon the death of H. S. Poole, unless he owned property, real or personal, at his death, there was no error in the refusal of the trial court to submit to the jury the issue tendered by the appealing defendant. The judge found from admissions in the pleadings that property rights were involved in the action at the time of the trial, and held that for •that reason the action did not abate at the death of the original defendant.

The judgment is affirmed.

No error.

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