majority"> Sea well, J.

Tbe defendant cannot, by motion in the cause, attack the decree of divorce for the extrinsic fraud alleged to have been practiced on the jurisdiction of the court. For that he must resort to an independent action. Horne v. Edwards, 215 N. C., 622, 3 S. E. (2d), 1; Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5. But this is immaterial since motion in the cause is the proper remedy against an irregular judgment, and the facts alleged are sufficient to warrant consideration of the judgment assailed in that aspect.

Our procedure requires certain means of protection to be afforded a person, non sui juris, or non compos mentis, when called to answer in court. C. S. 451, 483 (3). Some of them relate to service of process, and nonobservance may result in a void judgment; others relate to the protection to be afforded them by representation in the proceeding, and nonobservance may result in a judgment either void or merely irregular.

C. S., 451, requires that an insane person, having no general or testamentary guardian, shall defend by guardian ad litem and authorizes the court to appoint such guardian. It is said by the courts that the provisions of this statute should be strictly observed. Ward v. Lowndes, 96 N. C., 367, 2 S. E., 591. In Moore v. Gidney, 75 N. C., 34, 38, the provisions are said to be mandatory, and not directory only. “Those who venture to act in defiance of them must take the risk of their action being declared void or set aside.”

In the present case service of summons was made on the defendant, the present movant. Applicable to the legal situation thus produced, Justice Adams, in writing the opinion of the Court in Hood, Comr. of Banks, v. Holding, 205 N. C., 451, 455, 171 S. E., 633, says: “The rule is substantially uniform that a judgment against an insane person not previously declared insane is not void but voidable,” and “in such an instance relief may be administered when sought as between the parties by motion in the cause, or by an independent action.” Odom v. Riddick, 104 N. C., 515, 10 S. E., 609; Craddock v. Brinkley, 177 N. C., 125, 98 S. E., 280; Bank v. Duke, 187 N. C., 386, 122 S. E., 1; Clark v. Homes, 189 N. C., 703, 128 S. E., 20; Wadford v. Gillette, 193 N. C., 413, 137 S. E., 314.

The former dismissal of a somewhat similar motion by Judge Bone cannot be relied upon by the plaintiff as constituting res judicata. Generally the doctrine of res judicata will not apply where the judgment is rendered on any grounds which do not involve the merits. 30 Am. Jur., Judgments, sec. 208. The first motion was dismissed for the reason that it contained no allegation that movant had a meritorious defense. Duffer *22 v. Brunson, 188 N. C., 789, 125 S. E., 619; Harris v. Bennett, 160 N. C., 839, 76 S. E., 217. There is no reason wby this should estop defendant from making a second motion free from such technical defect. In the present motion there was an allegation respecting a meritorious defense stated with much particularity and sufficient, if found true, to support the allegation.

We think upon the record, the evidence and the findings of fact made by the trial judge, his judgment setting aside the decree of divorce should be sustained.

Affirmed.

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