dissenting: The order to show cause made by Judge Williams of his own motion on 13 June 1957, a copy of which he ordered served upon the plaintiff and the defendant, reads in part as follows:
“There having been presented to the undersigned Clawson L. Williams, Judge presiding over the June 10, 1957 Criminal Term of the Superior Court of Durham County a number of affidavits by the Honorable W. H. Murdock, Solicitor, and the Court having examined said affidavits, said affidavits having stated and alleged that the plaintiff in this cause, Mary K. Shaver (later and now known as Mary K. Carpenter and as Mrs. Stanley M. Carpenter), and the defendant, Floyd N. Shaver, did in fact reside and live together as husband and wife for extended periods of time during 1944 and 1945 and were generally regarded by friends and acquaintances during such periods as living together as husband and wife; and it appearing further to the Court from the complaint, answer and judgment entered in the above cause that the plaintiff alleged and the defendant admitted that they had separated January 1, 1944, and had Continued to live separate and apart thereafter, and at no time had resumed the marital relationship existing between them, and that the action for divorce a vinculo on the basis of two years’ separation of the parties was instituted May 10, 1946; that an answer admitting all allegations of the complaint was filed by the defendant on May 18, 1946; and that judgment of absolute divorce was entered May 27, 1946; and it further appearing to the Court that if the matters and things alleged in the affidavits presented to the Court are true and correct, that the allegations of the complaint and the admissions of the answer are false and untrue, and have been employed for the purpose of perpetrating fraud and collusion upon the Superior Court of Durham County, and that the judgment of divorce a vinculo heretofore entered in this cause is void and of no effect and should be vacated and set aside for the reason that his Honor Henry A. Grady, Judge presiding of (sic) the May 1947 Civil Term of the Superior Court of Durham County, was without authority to enter said judgment, the said Court not having acquired jurisdiction of the subj ect matter of said action, the parties to said action not having lived separate and apart for two years next preceding the institution of the action as required by law, and it further appearing to the *122Court at the March 1957 Term of Durham County Criminal Court the Grand Jury returned a true bill charging the said Mary K. Shaver (now known as Mary K. Carpenter and as Mrs. Stanley M. Carpenter) with the crime of bigamous cohabitation as the result of her purported marriage to Stanley M. Carpenter, and the Court, of its own motion, based upon the affidavits presented to it and upon the bill of indictment hereinbefore referred to, being of the opinion that the questions raised as to the validity of the judgment of divorce herein referred to, and as to whether a fraud has been perpetrated upon the Court, should be resolved and set at rest by the parties to said action, and it appearing to the Court that the plaintiff and defendant should be heard, or given an opportunity to appear, before entering a final order as to the validity of the judgment of divorce herein referred to.”
The majority opinion states: “The record also shows that copies of the order to show cause and all relevant orders, affidavits, and documents were mailed to the out-of-state addresses of the parties, and also to the firm of Haywood and Denny, attorneys, of Durham, who had appeared for the plaintiff in a prior motion in this cause.” Mary K. Shaver had full knowledge of the order to show cause, because Emery B. Denny, Jr. appeared for her in the lower court, and the firm of Haywood and Denny appear for her in this Court.
The record shows that on 14 June 1957 Judge Williams entered an order commanding that his order to show cause entered by him on 13 June 1957 be served on Floyd N. Shaver in Leesburg, Lake County, Florida. The record shows that this order was properly served on Floyd N. Shaver on 17 June 1957 by the Sheriff of Lake County, Florida.
Therefore, the record shows that Mary K. Shaver and Floyd N. Shaver had full knowledge of the order entered by Judge Williams of his own motion on 13 June 1957.
The common law conceded to all its courts the power to vacate its judgments. The Superior Court of North Carolina is a court of record of general jurisdiction, which also exercises equity jurisdiction. The power of the Superior Court to vacate its judgments, within proper limitations, is an inherent power vested in it, independent of statute, and it may be exercised by the Superior Court on its motion. Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; Freeman on Judgments, 5th Ed., Vol. I, Sec. 194; 49 C. J. S., Judgments, p. 478.
“The fact that a judgment was obtained through fraud or collusion is universally held to constitute a sufficient reason for opening or vacating such judgment either during or after the term at which it was rendered.... Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material *123circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case has been fair.” 49 C.J.S., Judgments, Sec. 269. The rationale of the rule is that a court of justice necessarily has the inherent power of its own motion to keep its records clear of fraud or collusion practiced upon the court itself.
I realize that it seems to be the prevailing rule that the authority of a court to set aside a judgment for fraud after the term at which the judgment was entered is usually limited to cases where the fraud was extrinsic and collateral to the matter tried, and not a matter at issue in the trial. 49 C.J.S., Judgments, Sec. 269; Freeman on Judgments, 5th Ed., Sec. 233.
Judge Williams’ order to show cause was based on the alleged grounds of fraud and collusion. The term “collusion,” as applied to divorce proceedings, has been accurately defined to be “an agreement between a husband and wife to procure a judgment dissolving the marriage contract, which judgment, if the facts were known, the court would not grant.” Doeme v. Doeme, 96 App. Div. 284, 89 N. Y. Supp. 215. Collusion in a divorce case is a particular type of fraud, perpetrated not upon the other spouse, but upon the court itself before whom the divorce is sought.
The question of collusion in this divorce case was extrinsic and collateral to the matter tried, and was not a matter at issue in the trial. If it should be considered that the decision in Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617, bars the Superior Court of Durham County of its own motion from proceeding to investigate the question as to whether the divorce was procured by fraud which was at issue in the trial, it does not preclude that court of its own motion from investigating and determining whether the divorce decree was procured by collusion of the parties perpetrated upon the court itself.
The State has an interest in the proper maintenance of the marital status of its citizens, and public policy forbids that the parties shall enter into any collusion to bring about a judicial dissolution of their marriage. Collusion between the parties to a divorce proceeding will ordinarily bar the granting of a decree of divorce. See Annotations in 2 A. L. R., pp. 712-714 and 109 A. L. R., pp. 848-849, where many cases are cited.
One group of eases hold that for reasons of public policy the courts will exercise their power and set aside a divorce decree, if collusion is clearly proved, and if proper application for relief is seasonably made. These courts stress the fact that relief is granted because of the interest of the state in suits for divorce, and not for the sake of *124the equally guilty parties. Other courts in a number of collusion cases have refused to grant relief in accord with the equitable principle that one who was himself a party to the collusion is not entitled to have it set aside for collusion. These cases where relief is granted and relief is denied are cited in Annotations 157 A. L. R., pp. 76-79, 9. Collusion as fraud, and 22 A. L. R. 2d pp. 1333-1334, 18, Collusion as fraud. See also Annotations 2 A. L. R., pp. 714-717, and 109 A. L. R., pp. 849-854, as to vacation of a divorce decree for collusion at the instance of a party guilty of collusion.
In this proceeding the Superior Court below was not acting upon application of any person, but was acting of its own motion to ascertain if the divorce decree obtained in this case had been procured by fraud or collusion perpetrated by the parties upon the court itself. In my opinion, the Superior Court of Durham County has the inherent power of its own motion to hear and determine whether in rendering this divorce decree it did so because of collusion practiced by the parties upon the court itself, and that in doing it, it is acting to preserve the purity of its proceedings, and in the interests of the state, which is concerned with the preservation of the marriage relations of its citizens, and the court of its own motion is not precluded from doing so by the power of the criminal law to punish, if the criminal law has been violated.
The Supreme Court of the United States, in an opinion by Mr. Justice Holmes, said in Michigan Trust Co. v. Ferry 228 U.S. 346, 57 L. Ed. 867: “Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign’s pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute. It applies to Article 4, Section 1, of the Constitution, so that if a judicial proceeding is begun with jurisdiction over the person of the party concerned, it is within the power of a state to bind him by every subsequent order in the cause.”
I think that the Superior Court of Durham County had jurisdiction over the parties in the order to show cause entered by the court of its own motion. The parties had full knowledge of the order to show cause. I vote to affirm Judge Bickett’s order. I do not agree with the statement in the majority opinion directing “that the order to show cause and all subsequent proceedings based thereon be vacated and set aside.”
*125In Patrick v. Patrick, 245 N.C. 195, 95 S.E. 2d 585, this Court affirmed an order of the Superior Court of Lenoir County entered at the May Term 1956 setting aside and declaring void a judgment of absolute divorce entered at the April Term 1929.
In my opinion, the order to show cause entered by the court of its own motion should be heard on its merits to determine whether the divorce decree was obtained by collusion between the parties perpetrated upon the court itself. If the order to show cause should be permitted by this Court to be heard on its merits on collusion, and if the divorce decree were vacated, we have full power to review the judgment of the court below.