At the outset we note that the action was instituted in the General County Court of Alamance County, and that jurisdiction to try and determine divorce actions was conferred on that court by statute, and, further, that appeals from that court to the Superior Court are upon exceptions duly noted and assigned as error, and that the power of the Judge hearing the case on appeal is limited to ruling on the exceptions brought forward. Exercising only appellate jurisdiction, he is without authority to make additional findings of fact as the basis of judgment. G.S. 7-279; Jenkins v. Castelloe, 208 N.C. 406, 181 S.E. 266; Starnes v. Tyson, 226 N.C. 395, 38 S.E. 2d 211.
In the complaint two years’ separation was alleged as grounds for divorce. G.S. 50-6. Byers v. Byers, 222 N.C. 298, 22 S.E. 2d 902; Taylor v. Taylor, 225 N.C. 80, 33 S.E. 2d 492. In defendant’s absence judgment was rendered in the County Court dissolving the bonds of matrimony between the parties for the reasons alleged. When the defendant learned of this result she sought relief by a motion in the cause that the judgment be vacated. She based her motion on the ground that plaintiff had not been a resident of North Carolina for six months preceding the institution of his action; that the service of summons by publication was inadequate and not made in a manner likely to give notice to the defendant; that the method employed by the plaintiff for obtaining substituted service under the circumstances here described constituted a fraud upon the court; that the absence of notice and opportunity to defend had resulted in the deprivation of personal and property rights of the defendant without due process of law.
*144In tbe bearing on defendant’s motion in tbe County Court, tbe Judge of that court found that plaintiff was a resident of North Carolina and concluded 'tbat tbe service of summons on tbe defendant was effected by tbe publication in tbe local newspaper, and tbat tbe County Court bad properly acquired jurisdiction to hear and determine tbe action and to render judgment dissolving tbe marriage tie. Upon this conclusion from tbe facts in evidence, tbe Judge denied defendant’s motion to set aside tbe judgment, and tbe defendant appealed to tbe Superior Court assigning tbe ruling and order of tbe court as error.
We note tbat Judge Harris in tbe Superior Court was of opinion tbat tbe affidavit attached to tbe complaint was fatally defective, but this conclusion is not borne out by tbe record. Tbe court also concluded tbat tbe order of publication was inadequate, but we perceive no substantial failure to conform to tbe statute in this respect. G.S. 1-99; Scott & Co. v. Jones, 230 N.C. 74, 52 S.E. 2d 219; Simmons v. Simmons, 228 N.C. 233, 45 S.E. 2d 124.
Tbe Judge of tbe County Court found from tbe evidence offered tbat tbe plaintiff bad been a resident of North Carolina for a sufficient length of- time to entitle him to maintain in tbat court an action for divorce under tbe statute. Though tbe Superior Court on appeal sustained defendant’s exception thereto, tbe finding of tbe trial judge must be held conclusive and binding on tbe Superior Court and on this Court if there be evidence to support tbe finding. Bryant v. Bryant, 228 N.C. 287, 45 S.E. 2d 572. Tbe defendant, however, with some reason contends tbat tbe plaintiff admittedly was a professional soldier, at all times under military orders, and tbat bis sojourn in North Carolina was subject to transfer, and lacked tbat degree of permanence sufficient to afford evidence of tbe acquisition of domicile. 106 A.L.R. 32 (note); 17 A.J. 287. It is argued tbat evidence of tbe animus manendi is insufficient (Owens v. Chaplin, 228 N.C. 705, 47 S.E. 2d 12; S. v. Williams, 224 N.C. 183, 29 S.E. 2d 744; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240), and tbat tbe place in which tbe plaintiff was a resident at tbe time of bis induction into tbe Armed Forces would continue to be bis legal domicile while in tbe service. Hiles v. Hiles, 164 Va. 131; 106 A.L.R. 1. But conceding tbat there may be some evidence in tbe record to take this case out of tbe rule and to show tbat tbe plaintiff’s physical presence in this jurisdiction was accompanied by such acts and definite expressions of intention and purpose to remain indefinitely as to support tbe County Court’s findings, Bryant v. Bryant, supra, we think tbe ruling of Judge Harris in tbe Superior Court should be upheld upon another ground.
Tbe exception to tbe conclusions of law of tbe County Judge in denying defendant’s motion and tbe ruling thereon in tbe Superior Court sustaining tbe exceptions squarely present tbe question of tbe integrity of *145the divorce decree procured by plaintiff in the County Court upon substituted service by publication in the manner and by the means here shown.
It may be observed that the statute (G.S. 1-108), which permits a nonresident against whom judgment has been rendered on substituted service to come in and defend at any time within five years, does not apply to actions for divorce. While a suit for divorce is not strictly an action m rem, yet it differs in some respects from an action in 'personam. It involves the marital statns of two persons, and the domicile of one of the parties in the State creates a relationship to the State adequate for the exercise of the State’s power to alter the marriage status of the resident though the other spouse be a nonresident, and there is no constitutional barrier if the form and nature of the substituted service meet the requirements of due process of law. Williams v. North Carolina, 317 U.S. 287; Williams v. North Carolina, 325 U.S. 226.
The defendant presents the view that not only was the service in this case invalid because not reasonably calculated to give notice (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865), but that the plaintiff’s attempt to secure a divorce decree by the means employed was a fraud upon the court. The rule is that if a fraud is perpetrated on the court whereby jurisdiction is apparently acquired when jurisdiction is in fact lacking, the judgment rendered thereon is a nullity and may be vacated on motion in the cause. Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Young v. Young, 225 N.C. 340, 34 S.E. 2d 154; Henderson v. Henderson, 232 N.C. 1, 59 S.E. 2d 227. Here the fact of the plaintiff’s knowledge of the residence and post office address of the' defendant in the city where he had lived with her as his wife and where she has continued to live, and his apparently purposeful failure so to advise the court when he prayed for service of summons by publication in a local newspaper of limited circulation, together with his knowledge that defendant had employed counsel and was prepared to and would defend the action if by any means she had notice, compels the necessary inference that plaintiff had contrived to conceal his action from the defendant and the facts from the court, and to prevent defendant from appearing and defending the suit, thus constituting a fraud upon the court. Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; Poole v. Poole, 210 N.C. 536, 187 S.E. 777; S. v. Williams, 224 N.C. 183, 29 S.E. 2d 744; Young v. Young, 225 N.C. 340, 34 S.E. 2d 154. See also G.S. 1-104.
The mere fact of- instituting suit for divorce in a county other than that of plaintiff’s residence would not be regarded as affecting the jurisdiction of the court over the action on proper service, but rather as affecting only the question of venue. Davis v. Davis, 179 N.C. 185, 102 S.E. 270; Smith v. Smith, 226 N.C. 506, 39 S.E. 2d 391. But where the *146plaintiff, as here, institutes an action in tbe county in which he is residing, notifies the nonresident defendant by mail and when she appears with counsel to defend takes a nonsuit, and then with full knowledge of her whereabouts has another summons issued in a court of limited jurisdiction in another county, and, without attempting to obtain personal service, procures service by publication in a weekly newspaper of limited circulation, and, without other notice, has divorce decree entered, the conclusion seems inevitable that plaintiff was seeking to obtain a divorce from his wife without her knowledge and to deprive her of her right to support and to marital association by a fraudulent imposition upon the court. Young v. Young, 225 N.C. 340, 34 S.E. 2d 154. The facts in this case seem to evince a purpose on the part of plaintiff to arrange the outward forms of substituted service and regularity of procedure, but in such a way that by no reasonable probability could defendant obtain notice or knowledge of his suit for divorce until after the decree had been entered. The form may not be exalted over the substance.
The defendant also asserts as reason for vacating the judgment of the County Court that she has thereby been deprived of personal and property rights without due process of law. We do not reach that question, but it may be observed that under the provisions of the Constitution of North Carolina, Art. I, see. 17, that no person be deprived of property “but by the law of the land,” as well as under the parallel provisions of the 14th Amendment to the Constitution of the United States, it is required that an adjudication affecting the marital status and finally determining personal and property obligations shall be preceded by notice and opportunity to be heard. Markham v. Carver, 188 N.C. 615, 125 S.E. 409; Bowie v. West Jefferson, 231 N.C. 408, 57 S.E. 2d 369; Truax v. Corrigan, 257 U.S. 312. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306.
The plaintiff points to the language in the judgment of Judge Harris that defendant’s exceptions “based on the choice of a newspaper for publication are not well taken,” and contends this expression should be interpreted as overruling defendant’s exception to the adequacy of the publication, but in view of the court’s ruling sustaining all defendant’s exceptions to the findings and conclusions of the County Judge, we do not think the expression quoted should be given significance. Elias v. Commissioners of Buncombe County, 198 N.C. 733, 153 S.E. 323.
For the reasons stated, the judgment of the Superior Court is
Affirmed.