45 N.C. App. 76 | N.C. Ct. App. | 1980
Plaintiff has set out six claims for relief in her complaint. All of them recite events or circumstances relating to the making of Alma Snipes’ will, the probate of that will, and the dissent from that will by defendant Harvey Snipes by and through his attorney-in-fact, defendant Trickey. All of these matters were the subject of proceedings before the Clerk of Court and the Superior Court on appeal. In his findings of fact, Judge Smith has referred to and recalled those proceedings, and upon such findings, he concluded that the complaint in this action constituted a collateral attack on the prior judgment.
It is settled law that a judgment which is regular and valid on its face may be set aside only by motion in the original cause
In the administration of decedents’ estates, the Clerk’s probate jurisdiction is original and exclusive. In re Estate of Adamee, 291 N.C. 386, 230 S.E. 2d 541 (1976). See also, Beck v. Beck, 36 N.C. App. 774, 245 S.E. 2d 199 (1978). Only where the record of the probate proceeding shows affirmatively on its face that the Clerk has no jurisdiction to enter his order can the order be attacked in another court in another proceeding. In re Davis, 277 N.C. 134, 176 S.E. 2d 825 (1970). There is no showing in the case sub judice that the order of the Clerk allowing the dissent showed affirmatively on its face that the Clerk lacked jurisdiction to enter it.
All of the claims for relief asserted by plaintiff relating to the form, adequacy, regularity, or legality of the dissent involve matters within the exclusive jurisdiction of the Clerk and were the subject of orders properly entered in the administration of the estate of Alma Moore Snipes. Such matters cannot be collaterally attacked in this proceeding.
In her third and fourth claims, plaintiff has alleged that defendant Snipes had impliedly or expressly agreed with his late wife not to dissent from her will and that defendant Trickey obtained her power of attorney from defendant Snipes by falsely representing to him the nature of the power and by failing to divulge to him that she intended to execute the dissent. Plaintiff maintains that the defendant Snipes relied upon the alleged false representations of Trickey, so that the execution of the dissent was a fraud on the defendant Snipes, a fraud on the Court, and a fraud on the beneficiaries of Alma Snipes’ will — the intended beneficiaries of the alleged agreement between Alma and Harvey. Plaintiff further alleged that defendant Trickey had tortiously interfered with the alleged agreement between Alma and Harvey.
These allegations were squarely before the Clerk of Court, who examined Snipes and found him to be of sound mind, capable
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 .... 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 case 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.
Stokley v. Stokley and Stokley v. Hughes, 30 N.C. App. 351, 354-355, 227 S.E. 2d 131, 134 (1976). There being no question here as to the jurisdiction of the Clerk of Court and of the plaintiffs opportunity to present her case, if plaintiff has stated a case for any type of fraud, it is clearly for intrinsic and not extrinsic fraud. As stated by this Court in Stokley, supra, intrinsic fraud must be attacked by a motion in the cause and not collaterally, as plaintiff has attempted in the present action.
Affirmed.
