Smallwood v. . Trenwith

14 S.E. 505, 110 N.C. 91

• Court: Supreme Court of North Carolina
• Decided: February 5, 1892
• Status: Published

Opinion

Avery, J.

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.

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.

There is no error, and the judgment is

Affirmed.