DocketNumber： 7827SC1086
Citation Numbers： 259 S.E.2d 570, 43 N.C. App. 530, 1979 N.C. App. LEXIS 3126
Judges： Arnold, Hedrick, Vaughn
Filed Date： 11/6/1979
Status： Precedential
Modified Date： 10/19/2024
Court of Appeals of North Carolina.
*571 Hollowell, Stott & Hollowell by James C. Windham, Jr., Gastonia, for plaintiff-appellee.
Basil L. Whitener and Anne M. Lamm, Gastonia, for defendant-appellant.
ARNOLD, Judge.
We reject defendant's position that the trial court erred in striking its counterclaim wherein it alleged that plaintiff obtained judgment based on false testimony at the original trial in federal court.
Defendant's counterclaim in the case at bar is an independent action based upon allegations amounting to fraud. Such action would have been more appropriately brought in the federal court since it is the judgment of that court that defendant attacks. The record does not reflect whether defendant filed an independent action in the federal court or moved for relief from that judgment pursuant to Rule 60(b) of the Federal Rules. The doctrine of res judicata prevents defendant from now attacking the veracity of plaintiff's testimony in the federal court by means of its counterclaim filed in this action.
Moreover, even if defendant were entitled to seek relief from the judgment entered in federal court it would be unable to prevail. The established rule in this jurisdiction is that where a judgment has been entered relief from that judgment is not available in an independent action upon facts which amount to intrinsic fraud. Stokley v. Stokley, 30 N.C.App. 351, 227 S.E.2d 131 (1976). False testimony is intrinsic fraud. Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1 (1939).
Under Rule 60(b)(3) of our Rules of Civil Procedure where relief is sought from final judgment by motion it is irrelevant whether the fraud alleged is "intrinsic" or *572 "extrinsic." The rule states, however, that it does not "limit the power of a court to entertain an independent action (emphasis added) to set aside a judgment for fraud." Rule 60(b). This Court, in Stokley v. Stokley, supra, 30 N.C.App. at 354-55, 227 S.E.2d at 134, reaffirmed the distinction between intrinsic and extrinsic fraud. The effect of the Stokley decision is that whenever the alleged fraud is intrinsic it can only be the subject of a motion under Rule 60(b)(3), and then, of course, it is barred after one year following the judgment. See Shuford, N.C. Civ.Prac. & Proc., § 60-8.
Affirmed.
HEDRICK and VAUGHN, JJ., concur.