The opinion
Smith, C. J.
The cases cited by the counsel for the appellants show that relief from a judgment at law, rendered against the course of the court, may be had by motion in the cause. To this class of cases belong:
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Pearson
v.
Nesbit,
1 Dev., 315 , where the judgment was vacated seven years after its rendition, because the same person was plaintiff, an executor and a defendant.
Keaton
v.
Banks,
10 Ired., 381 , where an unauthorized acceptance of service of process was made for an infant defendant, and the judgment on which an execution had issued and property sold was set aside eight years thereafter.
It is equally well settled, that errors or wrongs committed during the progress of a suit in equity, and before its determination, must be corrected by a petition filed in the cause, as is held in
Singletary
v.
Whitaker,
Phil. Eq., 77; and
Rogers
v.
Holt,
Ib., 108.
If, however, the suit is ended by a final decree, carried into effect, the redress must be sought by a new action, as is decided in
Covington
v. Ingram, 64 N. C., 123 ;
Thaxton
v.
Williamson,
72 N. C., 125 ; and
Peterson
v.
Vann, 83
N. C., 118 ; and is recognized and acted on in
Doyle
v.
Brown,
72 N. C., 393 , and
Latta
v.
Vickers,
82 N. C., 501 .
The case of
Doyle
v.
Brown ,
in its essential features, is very similar to the present. There, the petitioners alleged that they resided in the state of Arkansas, when the bill for sale of the lands was filed and decree made; that they had no-notice of the proceedings, nor have in any way assented to them since they came to their knowdedge in 1867; In delivering the opinion, Rgade, J., uses this language: “ It is an action in the nature of a bill in equity to vacate the said decree, but not alone for that. It sets forth the proceedings and the decree in the former action, and that the plaintiff was not in fact a party thereto, and had no knowledge of it, being at the time, as she now is, a non-resident. And it demands to have the proceedings and decree \ acated and declared void.”
So 'again in
Peterson
v.
Vann,
where the motion was
to
invalidate certain proceedings instituted by the plaintiff, as administrator, for license to sell land for assets, Dillard,
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J., adverting to the fact that a final decree had been entered, the purchase money paid, and title made to the purchaser, proceeds to say:
“
When the motion in the cause was made, there was no cause pending in which to make the motion, and
the. only remedy of defendants was, as settled by a series of decisions in this court, by an action in the superior court, commenced by summons, as a substitute for a bill of review, or for a bill to impeach the decree for fraud.”
We think, therefore, the remedy in this ease has been misconceived, and should have been sought in a new action. We do not enter upon a consideration of the merits, and will only say that if confidence in the integrity of the action of the court is to be retained, it will be slow to annul what it has done, after the lapse of many years, and will only do so upon the clearest proof. The judgment is affirmed.
No error. Affirmed.