Simmons v. . Simmons
45 S.E.2d 124
N.C.
1947
Check Treatment
Seawell, J.

To avoid confusing definitions which may or may not be controlling in plaintiff’s selection of an available remedy, we must turn to applicable precedents and established rules of practice in our own jurisdictions. Guided by these we are of the opinion that the plaintiff in this action must seek her remedy by motion in the cause in Anson County, where the proceeding was had and the judgment assailed was rendered, rather than by independent suit in Stanly County.

Certainly the affidavit on which the order of service by publication is made is jurisdictional, and the omission therefrom of those averments on which service of notice by publication is substituted for personal service would be fatal to the proceeding, G. S., 1-98; Rodriguez v. Rodriguez, 224 N. C., 275, 29 S. E. (2d), 901; Groce v. Groce, 214 N. C., 398, 199 S. E., 388. But we have never seen the statement in the affidavit that the applicant has a “good” cause of action, of a certain character, so classed. Addressed as it is to the issuing court and its “satisfaction,” its truth or falsity must abide the trial on their merits, and any other holding would result in authority for the defendant, at any time, at his or her pleasure, to demand a retrial in the vestibule of the court rather than *235 at tbe bar. Besides, neither G. S., 1-98, nor G. S., 1-99, requires the applicant to swear to the merits of his cáuse of action' — only to sa,y that he has one and the purpose thereof.

The appellant, as we take it, relies more strongly on the objection that the affidavit does not comply with the statute, G. S., 1-98, in respect to the diligence used in the effort to secure personal service; citing Rodriguez v. Rodriguez, supra, in support of her position. The language employed in the statute is as follows :

“Where the person on whom the service of the summons is to be made cannot, after due diligence, be found in the state, and that fact appears by affidavit to the satisfaction of the court . . .”

The language of the affidavit reads:

“That the defendant . . . after diligent inquiry cannot be found in the State of North Carolina.”

While it is always best to use the form suggested in the statute, the language used seems to be identical in meaning, or substantially so, indicating the same degree of diligence. Words and Phrases, Yol. 13, p. 476; Id., p. 484.

In Rodriguez v. Rodriguez, supra, the affidavit simply stated “that the plaintiff after due diligence has been unable to locate the defendant and that her whereabouts is not known.” Whether his diligence was confined to his own town or neighborhood, or what territory he perused, did not appear. Under the statute it should have been statewide. It is noteworthy that the present plaintiff, simultaneously with this attack, states that she was at the time in the State of California.

However that may be, we are considering only the question of procedure and the limitations which the law and the practice have set upon the choice of remedies — not what may be the ultimate result of a properly directed attack. There can be no question that for an alleged defect of this kind the remedy is by motion in the original cause, since there is no equitable principle involved. Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Long v. Rockingham, 187 N. C., 199, 121 S. E., 461; Craddock v. Brinkley, 177 N. C., 125, 127, 98 S. E., 280. An independent action, even on grounds of fraud, may be treated as a motion in the cause if brought in the county -where the judgment was rendered (Fowler v. Fowler, supra; Craddock v. Brinkley, supra, p. 127), but not if the action is brought in another county.

We turn to the other allegations of fraud.

The fact that the plaintiff’s attack is grounded in fraud does not necessarily give her the right to pursue it in an independent action. Such *236 was tbe case in Young v. Young, 225 N. C., 340, 341, 34 S. E. (2d), 154; and Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5, cases parallel with tbe instant case in factual situation, and involving like jurisdictional features of tbe proceeding. Tbe fraud charged was found sufficient to vitiate tbe proceeding and invalidate tbe judgment, but tbe cases bold tbat tbe remedy must be by motion in tbe cause. In botb these cases, as here, there was an attack on tbe affidavit accompanying tbe complaint as fraudulent in particulars distinctly jurisdictional.

Tbe plaintiff cannot avail herself of intrinsic fraud consisting of perjury upon tbe trial, under tbe facts of the case. Horne v. Edwards, 215 N. C., 622, 3 S. E. (2d), 1. It is true tbat a judgment void upon its face, may be attacked anywhere, at any time, directly or collaterally; and an independent action may be maintained for fraud which is extrinsic and collateral; but tbe fraud alleged by tbe plaintiff is not of tbat character. Young v. Young, supra; Woodruff v. Woodruff, supra. Tbe judgment of tbe court below dismissing tbe action is

Affirmed.