#### ANNIE GREY WILLCOX POOLE v. H. S. POOLE, W. S. BABCOCK, Administrator of H. S. POOLE, Deceased, and BERTA WILLIAMS BURTON POOLE.

(Filed 14 October, 1936.)

1. Abatement and Revival D a—

A special plea in abatement must ordinarily be made before pleading to tbe merits; otherwise, tbe right to file such plea is waived.

2. Judgments K f — Held: This action was attacked on judgment for fraud, and independent action was proper procedure.

Tbe procedure to attack a judgment for absolute divorce on the ground of fraud perpetrated on defendant and tbe court in service of process by publication and obtaining judgment upon false allegations in tbe complaint, while defendant was out of tbe State on a visit, when plaintiff knew of defendant’s whereabouts throughout, is by independent action.

S. Abatement and Revival C d — Action to set aside absolute divorce does not abate when property rights are involved.

An action to set aside a decree of absolute divorce abates upon the death of defendant husband unless at the time of his death he owned property, but where the court finds from admissions in the pleadings that the husband owned property at the time of his death, his refusal to submit the issue of whether the husband then owned property is not erroneous, and his holding as a matter of law that the action did not abate is without error.

4. Estoppel B a — Solemn admission in pleadings estops party from maintaining conflicting position upon the trial.

In a suit to set aside a decree of absolute divorce, instituted against the husband and thereafter maintained against his personal representative upon the husband’s death, the person who had married the husband subsequent to the decree was allowed to intervene upon her allegations *537that the husband died possessed of realty, and that her dower rights were involved. *Held:*The admissions in the pleadings estop intervener from maintaining at the trial that the action should abate on the ground that the husband had no property at the time of his death.

Appeal by defendant Berta Williams Burton Poole from Harris, *J.,*at April Term, 1936, of Edgecombe.

No error.

Tbis is an action to bave a decree of absolute divorce and tbe verdict on wbicb said decree was rendered at November Term, 1932, of tbe Superior Court of Edgecombe County in an action instituted by tbe defendant H. S. Poole against tbe plaintiff, set aside and vacated on tbe ground that said decree and verdict were procured by tbe fraud of tbe defendant H. S. Poole, as alleged in tbe complaint.

Tbe action was begun in tbe Superior Court of Edgecombe County by summons issued on 29 June, 1933. After tbe complaint was filed, to wit, on 22 July, 1933, tbe defendant H. S. Poole died. Thereafter on motion of tbe plaintiff W. S. Babcock, wbo bad been duly appointed as administrator of tbe said H. S. Poole, deceased, was duly made a party defendant to tbe action. He filed an answer to tbe original complaint in wbicb be denied all tbe material allegations therein, and prayed that tbe action be dismissed.

On 11 June, 1935, Mrs. Berta Williams Burton Poole filed a petition in tbe action in wbicb she alleged that after tbe decree of absolute divorce bad been rendered in tbe action instituted by H. S. Poole against tbe plaintiff, she bad intermarried with tbe said H. S. Poole, and that she is now bis widow, and as such is entitled to dower in tbe lands and to a distributive share in tbe personal property, wbicb be owned at bis death. She prayed for an order allowing her to interplead in tbe action, that she might defend tbe same. Pursuant to her petition, an order was made in the action that *she*be made a party defendant. Thereafter she filed an answer to tbe original complaint in wbicb she denied all tbe material allegations therein, and prayed that tbe action be dismissed.

When tbe action was called for trial on tbe issues raised by tbe pleadings, tbe defendant Berta Williams Burton Poole filed a verified plea in abatement, as follows:

“Tbe defendant Berta Williams Burton Poole, a defendant in the above styled action, hereby filed her plea in abatement, and assigns as grounds therefor that tbe action should abate for that tbe original defendant H. S. Poole is now dead, and that tbe said H. S. Poole bad no property in bis name at the time of bis death.”

Tbe plea in abatement was denied by tbe court, and tbe defendant Berta Williams Burton Poole excepted.

Tbe issues submitted to tbe jury were answered as follows:

*538“1. Was tbe service of summons obtained by tbe fraudulent act of H. S. Poole? Answer: ‘Yes.’

“2. Did tbe said II. S. Poole perpetrate a fraud on tbis court by alleging five years separation from Annie Willcox Poole, and obtaining a decree of absolute divorce on said ground ? Answer: ‘Yes.’ ”

In apt time, tbe defendant Berta Williams Burton Poole tendered an issue as follows:

“Did H. S. Poole at tbe time of bis death own any property?”

Tbe court declined to submit tbis issue to tbe jury and tbe defendant excepted.

Thereupon judgment was rendered as follows:

“This cause coming on to be beard at tbe April Term, 1936, of tbe Superior Court of Edgecombe County, North Carolina, before Hon. W. 0. Harris, Judge presiding, and a jury, and being beard, and tbe two issues having been submitted to tbe jury and answered as appear in tbe record; and it further appearing to tbe court, and tbe court finding tbe facts to be as follows:

“That H. S. Poole, plaintiff in that certain action instituted in tbe Superior Court of Edgecombe County, N. C., entitled ‘H. S. Poole v. Annie Grey Willcox Poole,’ same being No. 2984, on tbe summons docket of said court, and tbe said Annie Willcox Poole were married on 26 October, 1904, and for 27 years lived together as man and wife in tbe city of Rocky Mount, in Edgecombe and Nash counties, North Carolina, and that there were born of said marriage three sons; that thereafter, in September, 1931, tbe said H. S. Poole and Annie Willcox Poole separated from each other, and following said separation, tbe said Annie Willcox Poole made her home in tbe city of Raleigh, in Wake County, N. 0.;

“That on 11 August, 1932, tbe said H. S. Poole instituted an action for divorce in tbe Superior Court of Edgecombe County; that summons was issued in said action to tbe sheriff of Wake County, N. C.; and said summons was returned endorsed that tbe defendant Annie Willcox Poole could not be found in Wake County; that service by publication was made in a newspaper called *The Tarboro Southerner,*a newspaper of very limited circulation; that tbe order of publication was procured from tbe clerk of tbe Superior Court of Edgecombe County upon tbe affidavit set out in tbe record in that case; that just prior to tbe issuance of tbe summons in that case to tbe sheriff of Wake County, tbe said H. S. Poole bad learned from a sister of tbe said Annie Willcox Poole that tbe said Annie Willcox Poole was not in Wake County, but was on a visit to one Joe Poole, a son of tbe said H. S. Poole and Annie Will-cox Poole, who was then living in tbe city of Washington, D. 0., and would be away about three weeks; that while tbe said Annie Willcox *539Poole was in Washington, D. C., the said H. S. Poole communicated with his son, the said Joe Poole, regarding a business matter in which the said Annie Willcox Poole was involved, and learned from his said son Joe Poole that the said Annie Willcox Poole was then in Washington, D. C.; that at all times, from the issuance of the summons in that action on 11 August, 1932, until the granting of the decree therein at the November, 1932, term of the Superior Court of Edgecombe County, the said BL S. Poole knew where the said Annie Willcox Poole was, and that the said PL S. Poole made no attempt to secure personal service of the summons upon the said Annie Willcox Poole,- but on the contrary sought to prevent notice of said action from being brought to her attention.

“That the first knowledge which the said Annie Willcox Poole had of the pendency of any suit against her for divorce, or of any judgment rendered against her therein, was in November, 1932, when she learned that the said PL S. Poole had married Berta Burton Poole, the defendant herein; that immediately thereafter the said Annie Willcox Poole consulted an attorney and acting upon his advice, instituted proceedings to have the divorce decree set aside.

“That in said divorce action the said PL S. Poole filed his verified complaint in which he alleged that ‘plaintiff and defendant have lived separate and apart for five successive years/ and that ‘the separation was not caused by any misconduct on the part of the plaintiff, and he is the injured party.’

“That said allegations in the complaint in that action are and were false; that the plaintiff and defendant in that action had actually been separated less than one year at the time of the institution of that action.

“That the said PL S. Poole died subsequent to the institution of this action; but upon the suggestion and contention of the plaintiff and upon the verified petition to interplead of the defendant Berta Burton Poole, it appears that property rights are involved in this action and the court holds that therefore this action does not abate.

“Now, therefore, upon the foregoing facts and the verdict of the jury, the court being of the opinion and concluding as a matter of law, that these matters and things constitute a fraud upon the said Annie Willcox Poole and upon the court, it is by the court ordered, considered, adjudged, and decreed that the judgment rendered at the November Term, 1932, of the Superior Court of Edgecombe County in the action entitled ‘EL S. Poole v. Annie Grey Willcox Poole/ same being recorded in Judgment Docket 17, at page 3, and in the Minute Docket, page 395, office of the Clerk of the Superior Court of Edgecombe County, North Carolina, be and the same is hereby set aside and declared null and void, and of no effect.

*540“It is further ordered, adjudged, and decreed that the said action entitled ‘H. S. Poole v. Annie Grey Willcox Poole,’ shall abate.

“It is further ordered that the costs of this action be taxed against the defendant Berta Burton Poole.”

The defendant Berta Williams Burton Poole excepted to the judgment, and appealed to the Supreme Court, assigning errors in the trial.

*7arborough & 7arborough for plaintiff.*

*Geo. M. Fountain & Son for defendant.*

Connor, J.

The defendant on her appeal to this Court relies chiefly on her contention that there was error in the refusal of the trial court to sustain her plea in abatement on the ground that since the commencement of the action the original defendant, H. S. Poole, has died, and that at the date of his death “he had no property in his name.” The plea in abatement was filed after the defendant had been allowed to intervene in the action, on the ground that as the widow of H. S. Poole she had an interest in the property, real and personal, which he owned at his death. After she had been made a party defendant, she filed an answer to the original complaint, in which she denied the allegations therein which constitute the cause of action on which the plaintiff prays for relief. By pleading to the merits, after the death of the original defendant, and after his administrator had been made a party defendant, the appealing defendant waived her right, if any she had, to file a plea in abatement on the ground that the original defendant had died since the commencement of the action. A special plea in abatement must ordinarily be made before pleading to the merits; otherwise, the right to file such plea is waived. See *Honig v. Hawa,*194 N. C., 208, 139 S. E. 222; *Ins. v. R. R.,*179 N. C., 290, 102 S. E. 504; *Fort v. Penny,*122 N. C., 230, 29 S. E., 362. 1 C. J., 5, sec. 195.

In *Fowler v. Fowler,*190 N. C., 536, 130 S. E., 315, it is said:

> “It is well settled that for fraud perpetrated on a party to the action, the judgment must be attacked by an independent action.” This statement of the law applicable to this action is supported by numerous authorities cited in the opinion of *Olarhson, J.*

This is an independent action in which the judgment in the action entitled, “H. S. Poole v. Annie Willcox Poole,” is attacked for fraud perpetrated by the plaintiff in that action against the defendant therein. The action was begun before and was pending at the death of the original defendant, H. S. Poole. After his death, his administrator, on motion of the plaintiff, was made a party defendant. He filed an answer to the original complaint, in which he denied the allegations of the complaint. He did not file a plea in abatement, or otherwise contend that *541the action did not survive as to him. He has not appealed from the judgment setting aside and vacating the judgment in H. S. Poole *v.*Annie Willcox Poole on the verdict in the action which sustains the allegations of the complaint.

If it be conceded as contended by the appealing defendant, and as held in other jurisdictions (see *Fowler v. Fowler, supra),*that this action abated upon the death of H. S. Poole, unless he owned property, real or personal, at his death, there was no error in the refusal of the trial court to submit to the jury the issue tendered by the appealing defendant. The judge found from admissions in the pleadings that property rights were involved in the action at the time of the trial, and held that for •that reason the action did not abate at the death of the original defendant.

The judgment is affirmed.

No error.