Opinion
12763
November 14, 1929.
Before BONHAM, J., Anderson, July, 1928. Affirmed.
Action by H.E. Bailey, as Judge of Probate, and others, against H. Vance G. Cooley and others. From an order sustaining a demurrer to the complaint, plaintiff appeals.
The order of Judge Bonham in the Circuit Court is as follows:
"The complaint in this action alleges that John B. King, plaintiff, was adjudged non compos mentis March 25, 1921; that W.P. Nicholson, then judge of probate, on proper proceedings appointed H. Vance G. Cooley, brother-in-law of King, his guardian and committee, who entered into bond to the judge of probate and his successors in office, in the sum of $10,000, with the United States Fidelity and Guaranty Company as surety; that the plaintiff H.E. Bailey succeeded W.P. Nicholson as judge of probate, and is now holding that office; that on the 26th day of April, 1924, H. Vance G. Cooley rendered what purported to be a final accounting of his administration as guardian and committee as aforesaid, and was discharged as such; that at the same time, and before H. Vance G. Cooley was discharged, J.B. King was requested to sign and did sign an acquittance and receipt to Cooley, but that he had not had an opportunity to examine and digest the statement for settlement, and was not legally qualified to execute the receipt; that since the discharge the plaintiff King had regained his mental poise and health, and has discovered many irregularities in the said statement of fraudulent omissions and misrepresentation; that in procuring said settlement and discharge the said H. Vance G. Cooley imposed upon his ward, who because of his confidence in his guardian and committee, and his inability to properly protect himself, was unable to detect the fraud being perpetrated upon him. He prays that Cooley be required to account in this court, and that he have judgment on the bond for such sum as shall be found due.
"In due time defendants gave notice that on the call of the case for trial they would interpose a demurrer to the complaint on the grounds that it appears on the face of the complaint `(1) that this Court has no jurisdiction of the subject of the action, for the reason that the plaintiff King and the defendant Cooley have submitted themselves and the subject of this action to the jurisdiction of the probate court, which has adjudged the rights of the respective parties, who are bound by the judgment of that Court, and cannot avoid it, except by proper proceedings in the Court, in which it was rendered; (2) that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action, in that, while it appears that the rights of the parties have been adjudicated, it does not appear that the Court adjudged any breach of duty against the guardian and committee, but, on the contrary, granted him a full discharge.'
"By consent of counsel the demurrer came before me at chambers. A preliminary question is made by plaintiff's counsel that the demurrer cannot be considered, because it does not contain the certificate required by rule 18 of the Circuit Court, to the effect that the demurrer is meritorious, and is not intended for delay. Counsel for the defendants counters by saying that it is not a written demurrer, but is a notice of intention to demur orally on the call of the Case for trial, and that such notice does not need to be accompanied by the Certificate prescribed by Rule 18.
"It is not necessary to cite authorities in support of the statement that the jurisdiction of the Court may be challenged at any stage of the progress of the case, even on appeal to the Supreme Court, even though it has not been previously made.
"`The defendant may demur to the complaint when it shall appear upon the face thereof, either: (1) That the Court has no jurisdiction of the person of the defendant or the subject of the action.' Code Civ. Proc. 1922, § 401.
"`Nothing' contained `in this chapter shall be construed to impair the right of any party to object to the jurisdiction of any court or tribunal at any time and place in any manner now allowed by law and the practice in this State, when such objection is based upon the lack of jurisdiction of the subject matter of the case or proceeding.' Code Civ. Proc. 1922, § 409.
"The contention of defendants' counsel seems to be sustained by the opinion of Mr. Justice McGowan in Elliott v. Pollitzer, 24 S.C. 85. It is true that this is the minority opinion, but the differences do not include this utterance. `There are essential differences between a written and verbal demurrer. The former is a pleading and makes an issue. It must be filed within a prescribed time after service, and be accompanied by a certificate of the counsel filing it, that it is meritorious, and not intended merely for delay (see Rule 18 of the Circuit Court), while "a verbal demurrer" has not thrown around it any such safeguards. It is simply a motion at the trial without notice, and being easily made, may be entirely without merit, and only intended for the purpose of delay.'
"It was not necessary for the defendants' counsel to give notice of his intention to attack the jurisdiction of the Court. His election to do so does not make of his notice a written demurrer, which requires the certificate prescribed by Rule 18. If, however, this written notice can be held to be a demurrer, it would be competent for the Court to allow the certificate to be appended to it now, and the defendants may do so, if they be so advised.
"The cardinal question involved in this issue is whether this action can be maintained in the court of common pleas, the court of probate having taken jurisdiction of the subject, and the plaintiff and defendant having submitted themselves thereto, and that Court having rendered judgment, may that judgment be then attacked?
"That the judgment of a court of competent jurisdiction, regular on its face, may not be attacked by a collateral proceeding, is too well established to need to be fortified by the quotation of authorities. That the court of probate is a court of record, and its judgments rendered within the compass of its jurisdiction fixed by statute, and regular on their face, are binding on the parties thereto, and are entitled to the recognition and support of all Courts, is equally well established and may not be attacked collaterally.
"Plaintiff's counsel relies with confidence on the able opinion of Mr. Justice Marion in the case of Beatty v. National Surety Co., 132 S.C. 45, 128 S.E., 40, 43. That opinion lucidly maintains the proposition that Courts of Probate and of Common Pleas have concurrent jurisdiction, in certain circumstances, to call fiduciaries to account. But it contains this statement, strikingly applicable to our case: `Thus in an action for an accounting against an administrator the Court of Common Pleas has concurrent jurisdiction with the Court of Probate.' Epperson v. Jackson, 83 S.C. 157, 65 S.E., 217. `If, however, at the time of the commencement of an action in the Court of Common Pleas there is an action or proceeding pending in the court of probate, which properly embraces the subject-matter of the inquiry sought to be conducted in the Court of Common Pleas, then, under the principle of comity the court of Common Pleas will decline to entertain jurisdiction of such inquiry.'
"Upon the subject of collateral impeachment of the judgment of the Probate Court the opinion in that case holds: `It does not appear, and does not seem to be contended, that the plaintiff was a party to the proceeding in the Probate Court, which culminated in * * * letters dismissory to the administrator. Obviously, therefore, the rule against collateral attack as applied in the case cited by appellant ( Phillips v. Hill, 116 S.C. 218, 107 S.E., 909) has no application."
"In the case at bar it appears on the face of the complaint that the plaintiff was a party to the proceeding which culminated in the judgment of the Court settling the accounts between the parties, and in the order discharging the guardian and committee from his offices. In my opinion the matter is set at rest by the case of Phillips v. Hill, supra. This was an action in the Court of Common Pleas by a former guardian of an infant against his successor in office to recover certain moneys which he claims should have been allowed him as credits by the Probate Court in a final settlement in that Court when he turned over the guardianship to the defendant. There was a demurrer to the complaint on the ground `that this court has no jurisdiction of the subject-matter of this action.' (2) `That the complaint does not state facts sufficient to constitute a cause of action.'
"The decree of the Circuit Judge (Judge Townsend) which was adopted by the Supreme Court as the judgment of that court is, in part, as follows:
"`The demurrer to the jurisdiction of this Court was properly overruled, under the authority of Epperson v. Jackson, 83 S.C. 162, 65 S.E., 217. But the decision in that Case, pronounced by the present Chief Justice, requires that the demurrer on the ground of failure to state facts sufficient to constitute a cause of action should be sustained, for the reason that any error on the part of the Probate Court in disallowing credits in the final settlement should have been reviewed on appeal. As there said by the Chief Justice: "There was no appeal from said order, nor can it be attacked in a collateral proceeding."
"`Plaintiff's claim now to be allowed the credits is based on the ground that he was ignorant of his right to them, and * * * overlooked them. This does not entitle him to equitable relief. Jones v. Kilgore, 2 Rich. Eq. 63. "Irregularity, or error, in proceedings at law, furnishes no ground for reviewing the judgment in equity." McDowall v. McDowall, Bailey, Eq., 325. The plaintiff's omission to claim these credits in the proceedings for a final settlement brings him within the rule "that not only what the party in a cause has, but whatever he might have, litigated in a Court of competent jurisdiction, shall not be agitated again in a subsequent suit between the same parties." Plaintiff's failure to claim these credits in the Probate Court does not give this Court jurisdiction in equity to now allow them, or to adjudge their payment' — citing authorities.
"`The judgment * * * is not void, but merely voidable; for the alleged jurisdictional defect is not manifest from an inspection of the record, which presumptively shows the contrary, but is only made to appear by evidence dehors the record. Such judgment, being merely avoidable, is not subject to collateral attack, and must be held as valid and conclusive until set aside by a direct proceeding instituted for that purpose in that cause.' Sanders et al. v. Price, 56 S.C. 1, 33 S.E., 731, 732.
"`This action is not a direct proceeding to invalidate said proceedings, but a collateral proceeding in which their integrity is sought to be assailed. All proceedings are collateral, unless brought in the cause in which the judgment was rendered, and for the purpose of setting it aside.' Connor et al. v. McCoy, 83 S.C. 165, 65 S.E., 257, 259.
"It seems useless to multiply authorities. I think it is clear that the plaintiff has brought his action in the wrong forum. It should be in the Court whose judgment he seeks to impeach; it should be in the cause in which the judgment was rendered, and should be for the purpose of setting aside that judgment, and reopening the proceeding.
"It is ordered that the demurrers to the complaint be sustained."
Messrs. S.M. Wolfe, and B.F. Martin, for appellants, cite: Admissions of demurrer: 90 S.C. 552; 144 S.C. 509; Sec. 390, Code Proc. As to relief: 90 S.C. 552. Jurisdiction: 132 S.C. 45; 133 S.C. 122; 144 S.C. 509; Sec. 197, 437, Code Proc. Fraud or misrepresentation, sufficient grounds for an original bill in equity to set aside a final settlement by a guardian: 28 C.J., 1241; 116 S.C. 218; 2 Rich. Eq., 63; 83 S.C. 157; Ar. 5, Sec. 15, Const. 15 R. C.L., 704.
Messrs. Allen Doyle, for respondents, cite: Relation between Probate Court and Court of Common Pleas: 132 S.C. 45. Sanity presumed: 1 S.E., 202. Distinguished: 116 S.C. 218. Judgment of Probate Court may not be collaterally attacked: 24 S.C. 398; 83 S.C. 165; 116 S.C. 7; 128 S.C. 323; 123 S.C. 208; 106 S.C. 486; 56 S.C. 1; 40 S.C. 193; 28 S.C. 281; Van Fleet's Collateral Attack, 579.
November 14, 1929. The opinion of the Court was delivered by
This action was commenced by service of the summons and the complaint on the defendants during the month of May, 1928. The several defendants answered the complaint and at the same time served notices of demurrer. By agreement the demurrers were heard at chambers by the Circuit Judge, Hon. M.L. Bonham. The demurrers were based upon two grounds, as therein set forth, and were sustained on the sole ground that the action constituted a collateral attack.
From the order of Judge Bonham the plaintiffs appeal to the Supreme Court, and the appeal involves the single question of practice, to wit: Can the action, as set out in the complaint, be maintained in the Court of Common Pleas, or is it necessary that direct proceeding be brought in the original action for accounting in the Court of Probate?
Judge Bonham's order states the case, and his order will be reported. In addition to the cases cited by him, his position is sustained by the following authorities: Turner v. Malone, 24 S.C. 398; Connor v. McCoy, 83 S.C. 165, 65 S.E., 257; Bradley v. Calhoun, 116 S.C. 7, 106 S.E., 843; Wolfe v. Bank of Anderson, 123 S.C. 208, 116 S.E., 451; Ray v. Pilot Insurance Co., 128 S.C. 323, 121 S.E., 779.
Fraud while forming a sufficient ground for direct attack on a judgment, does not justify a collateral attack thereon. Thus in Van Fleet's Collateral Attack, at page 579, it is stated: "The final settlement of an administrator or guardian is not void for fraud, nor because he allowed a fraudulent claim, nor because the report was false and fraudulent, nor because he fraudulently withheld assets and converted them to his own use, nor because the sales of property were fraudulent and made for his own benefit." See, also, 15 R.C.L., 855.
"A party to a judgment cannot be permitted in equity any more than at law collaterally to impeach it on the ground of mistake or fraud. * * * Fraud perpetrated by a party in procuring a judgment does not render it absolutely void, but is only cause for having it declared void in a proceeding instituted for that purpose and in proper time, as between parties and privies." Note, 79 Am. Dec., 752.
"A judgment of the Probate Court appointing a guardian, regular on its face, cannot be collaterally attacked on the ground of fraud, collusion or other matter aliunde." Note, 11 L.R.A., 160.
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.
MR. JUSTICE COTHRAN dissents.
I concur in the opinion of Mr. Chief Justice Watts. The authorities cited by the Chief Justice and in the order of Judge Bonham, and many others that might be cited, sustain the proposition that the Court of Common Pleas and the Probate Court have concurrent jurisdiction in matters of this kind, and the one which first acquires jurisdiction will maintain jurisdiction to the end, and the other will decline to entertain jurisdiction. There can be no doubt but that, when the Probate Court adjudged John B. King non compos mentis and appointed a committee for him, it acquired Jurisdiction of him and of his estate. There is no intimation that he has since been adjudged sane. The authorities are clear that when a person is adjudged insane, or non compos mentis, that status is presumed to continue until the contrary is made affirmatively to appear. If King was insane at the time of the alleged settlement in the Probate Court, of course, his receipt and the purported settlement are void.
When a person is adjudged insane, or non compos mentis, and a committee is appointed to take charge of his estate, it would seem that in an orderly administration of his estate it would be necessary for such person to be adjudged sane before a settlement should be made and approved by the Court. The presumption, therefore, is that the case is still pending in the Probate Court. That Court has jurisdiction to properly settle the estate, and, in my opinion, the Court of Common Pleas should not interfere, except by way of review, as provided for by law.
MESSRS. JUSTICES STABLER and CARTER concur.
This is an appeal from an order of his Honor, Judge Bonham, sustaining a demurrer to the complaint upon the ground that the matters complained of had been adjudicated in the Court of Probate, and that the only relief which the party affected by that adjudication might be entitled to can only be obtained in that Court, by a direct proceeding in the cause then before that Court.
The allegations of the complaint, which for the purposes of the demurrer are taken to be true, are in substance as follows, stated in narrative form:
In March, 1921, the plaintiff John B. King was adjudged by the Court of Probate of Anderson County a person of unsound mind, and the defendant H. Vance G. Cooley, his brother-in-law, was duly appointed his guardian and committee. Cooley qualified by giving a bond in the sum of $10,000, with the defendant United States Fidelity Guaranty Company as surety.
In April, 1924, Cooley made application for his discharge as guardian and committee to the Court of Probate, and supported his application by an alleged accounting of receipts and disbursements of the estate. Accordingly an order was passed by the Court of Probate approving the accounting and granting a discharge. Whereupon Cooley turned over to King the estate on hand and induced him to sign an acquittance and receipt therefor. The complaint alleges that King, at the time of the execution of said acquittance and receipt, which was executed on the same day that the accounting was submitted, had not had an opportunity to intelligently or properly digest or examine the same or to ascertain its correctness, and that he was not legally qualified to execute it; that Cooley took advantage of his relationship, imposed upon the confidence of King, who was unable to properly protect himself by detecting the fraud which was being perpetrated upon him.
The particular acts of fraud alleged were: The inclusion of erroneous and fraudulent entries in the accounting, in that certain items of disbursements in fact were duplications, double charges against the estate, and the omission of the value of 150 bales of cotton, which belonged to the estate, and which were stored by Cooley as guardian and committee, the receipts for which were turned over wrongfully by Cooley to Lee G. Holleman, president of People's Bank of Anderson, who hypothecated them, and by such hypothecation the cotton has been lost to the estate.
The prayer of the complaint is as follows: "Wherefore plaintiffs pray (1) that the said H.V.G. Cooley be required to come into this Court and make a full, satisfactory and complete return and accounting for his acts in the particulars alleged; (2) that the plaintiffs have judgment on the bond for such amount found to be in default under such proper accounting."
Unquestionably upon these facts the ward is entitled to some relief. The question is whether he has adopted the proper form of relief in bringing this action in the Court of Common pleas, the manifest object of which is to declare the accounting, settlement, and discharge adjudicated by the Court of Probate void, as the result of fraud upon the part of the committee, instead of applying to the Court of Probate, in the main proceeding, for an order setting aside the foregoing adjudication upon the same grounds now presented.
There can be no controversy over the proposition that, when a Court has complete jurisdiction of a cause and renders judgment therein, its judgment cannot be collaterally attacked in another Court upon the ground of fraud in the procurement of the judgment; the only grounds of attack collaterally are that the Court rendering the judgment was without jurisdiction of the parties or subject of the action and the assertion of the fact nul tiel record. The authorities cited in the opinion of the Chief Justice amply support this proposition. The vital question, however, is whether the present proceeding can be considered a collateral attack upon the judgment, or rather the adjudication, of the Court of Probate. I do not think so, but am of opinion that it is as direct an attack as could possibly be conceived.
In 1 Freeman, Judg. (3d Ed.), § 305, it is said: "Litigants of course, must be provided with some remedy to gain relief from an erroneous or unwarranted judgment. And in recognition of such necessity, the law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the Court's decision. If he so wishes, he may seek relief from the judgment by some timely move in the Court rendering it or have recourse to some authorized mode of review by an appellate tribunal, or under certain circumstances procure a setting aside or annulment of the judgment by a Court of Equity."
"This being true, it is but reasonable to conclude that an assailant is pursuing a very direct attack when he strikes at the judgment with one of the procedural weapons thus placed at his disposal, and per contra, that his assault is essentially collateral when attempted without such legal means." 1 Freeman, Judg. (3d Ed.), p. 606.
"If instituted for the very purpose of setting aside, correcting or modifying the judgment, it is usually regarded as a direct attack. * * *" 1 Freeman, Judge. (3d Ed.), p. 607.
At Section 1184, it is said:
"With the possible exception of probate of wills, a Court of Equity may in the exercise of its general equitable jurisdiction grant relief from the Probate orders and decrees upon the same grounds and conditions as from the judgment of other Courts. Equity may compel restoration of lands or property fraudulently acquired in Probate proceedings. The fact that the Probate Court is accorded exclusive jurisdiction in the first instance does not, at least with respect to most of its orders, differentiate it from any other Court possessing exclusive jurisdiction over matters entrusted to it. Nor is the general rule abrogated by statutes purporting to make decrees and orders of Courts of Probate conclusive, since they merely place the determinations of these Courts on the same footing as the judgments of other Courts without interfering with the power of Equity in proper cases to give relief from them. Sometimes statutes specifically provide for equitable relief, as for mistakes in final settlement of accounts, but statutory authority is not necessary in such cases.
"The general rule has been applied to various orders and decrees, such as those appointing or discharging administrators, or settling accounts of personal representatives and guardians, orders approving claims, orders of sale, orders setting apart a homestead, and decrees of distribution.
"But in all these cases Equity may be resorted to only upon a sufficient showing of some ground for the exercise of equitable jurisdiction such as mistake or extrinsic fraud and not merely to review the action of the Probate Court. `The Courts of chancery have no power to take such cases out of Probate Courts for the purpose of proceeding with the administration. But their power and functions to relieve against fraud, accident and mistake, or impending irremediable mischief is universal, extending over suitors in all of the Courts.'"
And in Section 1234:
"If an administrator suppresses the receipt of a sum of money obtained by him for the benefit of the estate, and thereby causes his accounts to be closed without his being charged with that sum, they will be reopened in Equity on the ground of fraud, although the statute declares the decree of accounting final and conclusive."
And in Section 1235:
"The failure to perform the duty to speak or make disclosures which rests upon one because of a trust or confidential relation is obviously a fraud for which Equity may afford relief from a judgment thereby obtained, even though the breach of duty occurs during a judicial proceeding and involves false testimony and this is true whether such fraud be regarded as extrinsic or as an exception to the extrinsic fraud rule."
In Pickens v. Merriam (C.C.A.), 242 F., 363, the action was by certain heirs against the administrator for an accounting of certain assets fraudulently omitted from the decree of distribution in the Court of Probate. The defendant demurred upon the ground that all inquiry into the alleged fraud was precluded by the final decree of distribution. The demurrer was sustained by the trial Court, but upon appeal his order was reversed. It was held, quoting syllabus:
"The action was not barred by the proceedings in or decree of the Probate Court wherein the administrator had accounted, where by reason of the conduct of defendants in concealing the facts concerning the estate there had been no adversary trial or decision upon the issues involved in such suit."
And: "The settlement of an administrator's account by the decree of a Probate Court does not conclude as to property accidentally or fraudulently withheld from the account."
The Court said in the opinion:
"How far such a hearing may go is indicated in the case of Griffith v. Godey, 113 U.S. 89, 5 S.Ct., 383, 28 L.Ed., 934, where Mr. Justice Field, delivering the opinion of the Court, said: `It is well established that a settlement of an administrator's account, by the decree of a Probate Court, does not conclude as to property accidentally or fraudulently withheld from the account. If the property be omitted by mistake, or be subsequently discovered, a Court of Equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the deceased or to the creditors of the estate may require, even if the Probate Court might, in such case, open its decree and administer upon the omitted property; and a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of Equity.'
Prior to the commencement of the action the plaintiffs had brought a similar action in the Kansas Courts to have the settlement in the Court of Probate of certain property in that State set aside for fraud, and for an accounting by the administrator of property with which he was alleged to be chargeable. A demurrer to the complaint was overruled and upon appeal the order was sustained. Pickens v. Campbell, 98 Kan., 518, 159 P., 21.
"The fraudulent concealment or omission of facts, by a fiduciary, the revealing of which would have caused the entry of the judgment in favor of the cestui que trust, is fraud which will induce a Court of Equity, in an independent suit, to relieve against a judgment or order that is unjust to the cestui que trust. Smith v. Smith (1914 [D. C].), 210 F., 947, affirmed in (1915), 139 C.C.A., 465, 224 F., 1; Sohler v. Sohler (1902), 135 Cal., 323, 87 Am. St. Rep., 98, 67 P., 282; Campbell-Kawannanakoa v. Campbell (1907), 152 Cal., 201, 92 P., 184; Burnett v. Milnes (1897), 148 Ind., 230, 46 N.E., 464; Bowsman v. Anderson (1912), 62 Or., 431, 123 P., 1092, rehearing denied in (1912), 62 Or., 444, 125 P., 270; Schneider v. Sellers (1900), 25 Tex. Civ. App. 226, 61 S.W. 541." Note to Laun v. Kipp (Wis.), 5 A.L.R., 655.
In Smith v. Smith (D.C.), 210 F., 947, 951, the Court said:
"It is the contention of the defense, however, that the order and the decree of settlement of the guardian's accounts and his discharge are conclusive and forbid any relief herein to complainant. It is true that decrees of a State Court in Probate, though in their nature ex parte, there being in fact no adversary proceedings, are generally conclusive, but, like all other decrees, judgments, and proceedings, they may be attacked and set aside, or rendered inoperative, when procured by fraud. The party thereto against whom they operate is not estopped from obtaining in a Court of Equity relief from them. It may be such relief could be procured in the Court of their origin, by complainant in the instant suit in the State Court of the decrees involved, but that is no reason why another Court, this Court in the instant suit by virtue of its equity jurisdiction and attaching by reason of diverse citizenship of the parties, may not and is not bound to give relief according to the recognized rules of equity."
In Glover v. Brown, 32 Idaho, 426, 184 P., 649, 652, the Court said:
"The validity of Probate proceedings may be attacked for fraud, and the jurisdiction of a Court of Equity to compel restoration of lands or proceeds fraudulently acquired by such proceedings is clear. Rhino v. Emery, 72 F., 382, 18 C. C.A., 600; Johnson v. Waters, 111 U.S. 640, 4 S.Ct., 619, 28 L.Ed., 547; Arrowsmith v. Gleason, 129 U.S. 86, 9 S.Ct., 237, 32 L.Ed., 630; McDaniel v. Traylor, 196 U.S. 415, 25 S.Ct., 369, 49 L.Ed., 533; Griffith v. Godey, 113 U.S. 89, 5 S.Ct., 383, 28 L.Ed., 934."
In Bruski v. Bruski, 148 Minn., 458, 182 N.W., 620, the syllabus is as follows:
"Relief from a decree of the Probate Court which was obtained by fraud * * * may be had by an action in Equity in the district Court."
In Stocks v. Stocks, 179 N.C. 285, 102 S.E., 306, the syllabus is as follows:
"A decree of a Court having jurisdiction in a proceeding in all respects regular on its face as to parties cannot be attacked collaterally, but it may be successfully impeached for fraud in an independent action brought for the purpose, when sufficient allegations of fraud are made, and issues framed upon such allegations are submitted to a jury, and the fraud is established by the verdict."
See extended note, L.R.A. (N.S.), 1918-D, 470.
The case of Connor v. McCoy, 83 S.C. 165, 65 S.E., 257, cited by respondent, and the cases cited in that case, do not at all involve the power of the Court of Equity as hereinbefore referred to.
For these reasons, I think that the order appealed from should be reversed.