Page:North Dakota Reports (vol. 48).pdf/495

, J. (concurring in part and dissenting in part). This is an equitable action to vacate and annul a certain judgment. There was a general demurrer to the complaint. The trial court sustained the demurrer, and the plaintiff has appealed. The question presented to the trial court, and also presented to this court, is whether the complaint did or did not state a cause of action. I am inclined to the view that the complaint did not state a cause of action, and that the trial court was correct in so ruling. There is no question but that the relief which plaintiff seeks to obtain in this action might have been obtained by a motion to vacate the judgment made in the action in which the judgment was entered. For it is well settled that the remedy by motion applies not only in cases which fall within the provisions of § 7483, C. L. 1913, authorizing the vacation of the judgment taken against a party through his mistake, inadvertence, surprise, or excusable neglect, but is equally applicable, and exists wholly independent of the statute, in cases where judgments have been rendered without jurisdiction or obtained through fraud upon the injured party and the court. Yorke v. Yorke, 3 N. D. 343, 353, 55 N. W. 1095; Williams v. Fairmount School District, 21 N. D. 198, 204, 129 N. W. 1027. Inasmuch as it clearly and indisputably appears that a remedy by motion was and 1s both available and adequate, it seems to me that the complaint wholly fails to set forth a cause of action for the vacation and annulment of the judgment. See Freeman v. Wood, 14 N. D. 95, 105, 103 N. W. 392; Freeman on Judgments (4 ed.) § 497; 15 R.C. L. p. 748.

Inasmuch as my associates are of the opinion that an action will lie under the facts set forth in the complaint in this case, even though the remedy by motion is available, and hence have found it necessary to also discuss and decide questions relative to the validity of the judgment, I deem it proper to say that I agree with what is said by Mr. Justice Bronson in that portion of his opinion covered by ¶ 1 of the syllabus. In other words, I am entirely agreed that if the facts set forth in the plaintiff’s complaint in this case were presented in support of and established upon a motion to vacate the judgment in the original action, it would be the duty of the trial court to set aside, vacate, and annul the judgment.