Stokley v. Stokley , 30 N.C. App. 351 ( 1976 )

227 S.E.2d 131 (1976) 30 N.C. App. 351

Charles Walter STOKLEY, Plaintiff,
v.
Mary Elizabeth Bray STOKLEY, Defendant.
Mary Elizabeth Bray STOKLEY, Petitioner,
v.
Lennie L. HUGHES, Administrator de bonis non of the Estate of Charles Walter Stokley, Respondent, and
Nancy M. Jernigan, Respondent.

No. 751DC1023.

Court of Appeals of North Carolina.

August 4, 1976.

Jennette, Morrison & Austin, by C. Glenn Austin, Twiford, Abbott, Seawell, Trimpi & Thompson, by C. Everett Thompson, Elizabeth City, for petitioner.

White, Hall, Mullen & Brumsey, by John H. Hall, Jr., Elizabeth City, for respondent Nancy M. Jernigan.

MARTIN, Judge.

The motion in the cause was made pursuant to Rule 60(b)(3), (4), and (6), Rules of Civil Procedure. The rule in pertinent part reads as follows:

"(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void;

(6) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action."

Appellant has conceded that an action grounded on Rule 60(b)(3) must be brought within one year. Thus, we consider the second ground upon which appellant relies, to wit, Rule 60(b)(4), "The judgment is void."

The court found that the judgment roll in the Edgecombe County divorce action was in all respects regular on its face. No exception was made to this finding of fact. In Carpenter v. Carpenter, 244 N.C. 286, 295, 93 S.E.2d 617, 625-626 (1956), Justice Bobbitt (later Chief Justice) speaking for the Court, said, ". . . As against challenge on the ground of false swearing, by way of pleading and of evidence, relating to the cause or ground for divorce, a divorce decree, in all respects regular on the face of the judgment roll, is at most voidable, not void."

The crucial question remaining is whether the matters alleged in appellant's motion, if taken as true, amount to "a fraud upon the court".

The motion is devoid of any allegation that appellant was prevented from fully participating in the pending divorce action. To the contrary, it is stipulated and otherwise admitted that appellant was personally served with copy of summons and copy of complaint in the Edgecombe County divorce action on 10 August 1964. Consequently, the instant case does not come within those cases when jurisdiction was purportedly acquired by false affidavit and service of process by publication. Woodruff v. Woodruff, 215 N.C. 685, 3 S.E.2d 5 (1939); Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945).

All the facts alleged in the motion are drawn within the classification of intrinsic fraud. In fact, appellant's fourth allegation classifies the fraud as "intrinsic" in the following language: "That the judgment in said case was obtained by perjured testimony and false evidence resulting in intrinsic fraud on the Court and the defendant."

The final judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time of appeal or other direct attack has expired only if the alleged fraud is extrinsic rather than intrinsic. Fraud is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court. If an unsuccessful party to an action has been prevented from fully participating therein there has been no true adversary proceeding, and the judgment is open to attack at any time. A party who has been given proper notice of an action, however, and who has not been prevented from full participation, has had an opportunity to present his ease to the court and to protect himself from any fraud attempted by his adversary. Fraud perpetrated under such circumstances is intrinsic, even though the unsuccessful party does not avail himself of his opportunity to appear before the court.

In Pico v. Cohn, 91 Cal. 129, 25 P. 970, cited with approval in McCoy v. Justice, 196 N.C. 553, 146 S.E. 214 (1929), and in Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1 (1939), the Court said:

"It must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation;. . . when he has a trial he must be prepared to meet and expose perjury then and there."

In accord, Thrasher v. Thrasher, 4 N.C.App. 534, 167 S.E.2d 549 (1969).

Upon the hearing of the plea in bar of the one year statute of limitations as set forth in Rule 60(b)(3) the trial judge correctly allowed said plea in bar and properly dismissed the motion in the cause. By so doing he in effect found that the fraud alleged in appellant's motion in the cause did not amount, even assuming proof thereof, to a "fraud upon the Court" but rather amounted to the fraud contemplated in Rule 60(b)(3).

Affirmed.

BROCK, C. J., and VAUGHN, J., concur.