Hatley v. Hatley , 202 N.C. 577 ( 1932 )

BeogdeN, J.

In a suit for absolute divorce, when service of summons by publication is based upon a false and fraudulent affidavit, may the final judgment rendered in the cause be vacated by motion in the cause ?

The trial judge was of the opinion that the judgment of absolute divorce could properly be vacated by motion in the cause. The Court concurs in such opinion. The question is expressly decided in Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315. The distinction as pointed out in the Fowler case, supra, is this: If a fraud be perpetrated on a party to an action, the final judgment must be attacked by an inde-jDendent suit. Upon the other hand, if a fraud is perpetrated on the court whereby jurisdiction is apparently acquired where no jurisdiction actually exists, then such final judgment is a nullity and may be vacated by motion in the cause.

Affirmed.