HENDERSON
v.
HENDERSON.
No. 529.
Supreme Court of North Carolina.
May 3, 1950.*233 Frank H. Kennedy, P. Dalton Kennedy, Jr., Charlotte, for plaintiff appellant.
Ralph V. Kidd, Warren C. Stack, Charlotte, for defendant appellee.
WINBORNE, Justice.
Confining consideration of this appeal within the bounds of the express terms of the motion of plaintiff, made on special appearance, as hereinabove quoted, decision here is determinable upon the answer to this question: Is the notice of the motion made by defendant in May 1949 to set aside the judgment of divorce entered in May 1942 and served on the attorney of plaintiff of record in the action, notice to plaintiff? The judge from whom appeal is taken was of opinion, and held that it was. And, in the light of the purpose of the motion so made by defendant, and of the grounds on which it is based, and upon the findings of fact made by the judge on hearing of the motion, we concur.
In this connection, the purpose of the motion of defendant was to set aside the judgment of divorce upon the ground that plaintiff had procured it by fraudulent imposition on the court. In this State at the time the action was instituted by plaintiff, marriages might be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce had resided in the State for a period of one year. P.L.1931, Chapter 72, as amended by P.L.1933, Chapter 163, and P.L.1937, Chapter 100. Under this statute, in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years; and (2) the plaintiff, husband or wife, shall have resided in the State of North Carolina for a period of one year. These two requirements are jurisdictional. Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549; Young v. Young, 225 N.C. 340, 34 S.E.2d 154; Sears v. Sears, 67 App.D.C. 379, 92 F.2d 530. If either one or the other of these elements were not existent, the court would not have jurisdiction to try the action, and to grant a divorce. And if the court has no jurisdiction over the subject matter of the action, the judgment in the action is void. A void judgment is one which has a mere semblance, *234 but is lacking in some of the essential elements which would authorize the court to proceed to judgment. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.
Moreover, if a judgment be obtained by means of a fraud practiced upon the court, the question may be raised by motion in the cause. McIntosh N. C. P. & P., 745, Judgments Sec. 656; Roberts v. Pratt, 152 N. C. 731, 68 S.E. 240; Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Cox v. Boyden, 167 N.C. 320, 83 S.E. 246; Young v. Young, supra; King v. King, 225 N.C. 639, 35 S.E.2d 893; Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794.
It is the established practice in court actions in this State that a notice of a motion to set aside a judgment may be served on the attorney of record of the opposing party, and that notice to such attorney in an action is notice to the party. Walton v. Sugg, 61 N.C. 98, 93 Am.Dec. 580; Branch v. Walker, 92 N.C. 87; In re Gibson, 222 N.C. 350, 23 S.E.2d 50. See also United States v. Curry, 6 How. 106, 12 L. Ed. 363.
Therefore, in keeping with the established practice in such cases, it would seem that, since L. P. Harris was the attorney of record for plaintiff, nothing else appearing of record, notice of defendant's motion to set aside the judgment of divorce entered in the action might be served upon him, and that notice so served is notice to plaintiff.
But the question now arises as to when the relation of an attorney of a party to the action ceases.
In this connection, it is noted that a party may appear either in person or by attorney in actions or proceedings in which he is interested. G.S. § 1-11. And while an attorney who claims to enter an appearance for any party to an action may be required to produce and file a power or authority as provided in G.S. § 84-11, it is held by this Court that after an attorney has entered an appearance and has been recognized by the court as the attorney in the cause, the opposite party may not call in question his authority. City of Newberne v. Jones, 63 N.C. 606.
And, speaking to the subject in the case of United States v. Curry, supra, the Supreme Court of the United States, in an opinion by Chief Justice Taney, had this to say: "No attorney or solicitor can withdraw his name after he has once entered it on the record without the leave of the court. And while his name continues there the adverse party has a right to treat him as the authorized attorney or solicitor, and the service of notice upon him is as valid as if served on the party himself." This principle has been quoted and applied in the cases of Walton v. Sugg, supra; Branch v. Walker, supra, and In re Gibson, supra; see also Allison v. Whittier, 101 N.C. 490, 8 S.E. 338; Coor v. Smith, 107 N.C. 430, 11 S.E. 1089.
Moreover, it is uniformly held in this State that after an attorney has been admitted by the court to represent a party to an action, he cannot, unless with the consent of the court, be discharged before the end of the suit. Walton v. Sugg, supra; Rogers v. McKenzie, 81 N.C. 164; Branch v. Walker, supra; Ladd v. Teague, 126 N.C. 544, 36 S.E. 45; Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801; In re Gibson, supra. See also United States v. Curry, supra.
And, "It may be said, generally, that the relation of counsel to the action does not cease, in any case, until the judgment in the court where it is pending is consummated, that is, made permanently effectual for its purpose as contemplated by law", Merrimon, J., in Branch v. Walker, supra. See also Walton v. Sugg, supra; Ladd v. Teague, supra; In re Gibson, supra; Allison v. Whittier, supra.
Too, the rule may be stated in this general way: The relation of the attorney of record to the action, nothing else appearing, continues so long as the opposing party has the right, by statute or otherwise, to challenge the validity of the judgment.
Therefore, in the light of this principle, applied to the case in hand, it is held that the relation of L. P. Harris, as attorney of record for plaintiff, did not terminate upon the rendition of the judgment of *235 divorce, but it continued, nothing else appearing, so long as defendant has the right to move in the cause to have the judgment set aside on the ground of fraud upon jurisdiction of the court, and to have the motion heard and finally determined.
Even so, it is the contention of appellant that defendant has been guilty of laches in asserting whatever rights she may have had, and was, therefore, barred of such right at the time she moved in the cause to set aside the judgment of divorce.
In this connection, comment is made in Hill v. Walker, 297 Ky. 257, 180 S.W.2d 93, 154 A.L.R. 818, that although the principle is that, upon proper showing being made, a court of equity may give relief from a judgment even after the expiration of the term, this presupposes that the party applying for the relief was not guilty of laches. And further statement is there made that "the doctrine of the finality of judgments and its corollary which prohibits the opening or vacating of a judgment after the expiration of the term at which it was rendered, however, presupposes the validity of the judgment, the jurisdiction of the court over the subject matter and the parties, and the competency of the court to render the judgment in question. Consequently, it is recognized by almost the unanimous consensus of judicial authority that the doctrine and its corollary have no application to void judgments such as judgments rendered by a court having no jurisdiction over either the subject matter of the action or the parties, or both, * * * and that such judgments may be opened or vacated by the court rendering them on motion made at any time, even after the expiration of the term at which they were rendered, or after the expiration of the period allowed by statute for opening or vacating judgments on certain grounds", citing Keaton v. Banks, 32 N.C. 381, 51 Am.Dec. 393; Wolfe v. Davis, 74 N.C. 597, and Massie v. Hainey, supra.
But because of judicial respect for the finality of judgments and the resulting reluctance to interfere with judgments, it is said that "Courts in many instances refuse to exercise their power to open or vacate a judgment where it does not appear that the applicant acted with reasonable diligence. Under this rule, unexplained laches on the part of the applicant is deemed sufficient ground for refusing relief to which he might otherwise be entitled. What constitutes laches sufficient to deprive an applicant of his right to relief is impossible of dogmatic definition. The decisions vary widely, since there must be taken into consideration not only the period of the delay but also the circumstances of the particular case. Mere delay does not necessarily constitute sufficient laches to bar relief." 31 Am.Jur. 278, Judgments, Sec. 733.
In the light of these principles, it is seen from the findings of fact (1) that in obtaining the judgment of divorce 18 May, 1942, plaintiff practiced a fraud upon the jurisdiction of the court; (2) that after obtaining the judgment, plaintiff continued to live with defendant as husband and wife, and concealed from her information as to the divorce judgment, until 28 June, 1947; (3) that defendant had no knowledge of the divorce action until that date; and (4) that she moved to set aside the judgment in May 1949.
Therefore, it is apparent that defendant acted within a reasonable time, after obtaining information of the judgment, and is not guilty of laches, which would bar her right to have the judgment set aside as void.
Indeed, it is appropriate to note that in this State the period prescribed by statute for the commencement of actions for relief on the ground of fraud is three yearsthe cause of action not being deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. G.S. §§ 1-46 and 1-52.
Moreover, all assignments of error, material to the motion of plaintiff, made on special appearance, have been given consideration, and fail to show cause for disturbing the decision reached in the court below.
Hence the judgment there is affirmed.