#### L. P. HATLEY v. CLAUDIA MAY HATLEY.

(Filed 13 April, 1932.)

Judgments K f — Where service by publication is based on fraudulent affidavit tbe judgment may be set aside by motion in the cause.

Where in an action for absolute divorce on the grounds of abandonment and separation for five years service of summons is returned “defendant not to be found,” etc., and the plaintiff swears to an affidavit that the defendant cannot be found in the State after due diligence, and thereupon an order is given for service by publication, and upon the trial of the action a decree for absolute divorce is entered: *Held,,*upon evidence showing that at the time of the issuance of summons and the swearing to the affidavit the plaintiff knew the whereabouts of the defendant in this State and that the affidavit was fraudulent, the defendant’s motion in the original cause to set aside the judgment is properly granted, it appearing that the plaintiff had perpetrated a fraud on the court whereby it falsely appeared that the court had obtained jurisdiction.

Civil actioN, before *Grady, J.,*at November Term, 1931, of Nash.

Tbe facts found by tbe judge and upon wbicb tbe judgment was based are as follows: Tbe summons in tbis cause was issued and a duly verified complaint filed on 18 September, 1930; tbe cause of action alleged in said complaint being for divorce on tbe grounds of abandonment and separation for a period of five years.

Tbe summons was returned by tbe sheriff: “Claudia May Hatley not to be found in Nasb County. J. H. Griffin, sheriff of Nash County.” Said return is not dated.

On 16 September, 1930, the- plaintiff filed an affidavit in tbe clerk’s office, stating under oath that said summons bad been issued and returned as above stated, and further stating upon oath, “that tbe defendant therein cannot after due diligence be found within tbe State.” Upon said affidavit, wbicb is made a part of tbis finding of fact, tbe clerk entered tbe order on 18 September, 1930, directing that service of said summons be made by publication, and thereupon a notice of tbe pend-ency of tbe action was published in *“The Graphic,”*a newspaper published in Nashville, N. C., as will appear by affidavit on file in tbe judgment roll.

Thereafter, at tbe November Term, 1930, said cause was beard before Cranmer, judge, and tbe jury found that there bad been a separation of tbe parties for five years and that tbe plaintiff was tbe injured party.

In tbe complaint, verified by tbe plaintiff and filed 18 September, 1930, it is alleged that one child bad been born to tbe marriage, “who is now living, namely, May Ella Hatley, 15 years of age, and said child is with its mother”; said mother being tbe defendant in tbis cause.

*578On 20 July, 1930, plaintiff wrote a postal card to the said May Ella Hatley and addressed the same *to her at*Tarboro, N. C., he knowing at the time that she was living with her mother, the defendant, Claudia May Hatley. Said card was put in evidence and is made a part of this finding of fact.

The court finds also that the plaintiff knew at the time of the issuance of the summons in this cause that his wife was living in Tarboro, N. .0.; *that*he knew said .facts at the time he made the affidavit in order to obtain the order of publication; and the court finds that said affidavit contained a false statement of fact which was known to the plaintiff; that the plaintiff has at all times known the residence and whereabouts of his wife, who has at all times lived within the State of North Carolina' since the marriage; that he has been in correspondence with her or with said .child, and has sent contributions to both of them from time to time, and that there has not been any abandonment and separation of the parties, which would justify a decree of divorce.

The court finds that this action in its inception and prosecution was a fraud upon the court and a fraud upon the defendant; and it is now ordered, adjudged and decreed that the verdict as copied in the Minute Docket,-Yol. 20, page 420, and the judgment and decree Of divorce as recorded in Judgment Docket, Yol. 31, page 44, of Nash County, be and the same are hereby set aside, canceled and declared null and void and the clerk of the Superior Court will enter a cancellation of the same upon the minutes of the court and judgment docket aforesaid.

*Gooley <& Bone for plaintiff.*

*No counsel, contra.*

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.