(after stating the facts). The whole case had been beard upon the merits, preparatory to final judgment. Nothing remained to be done to that end, and both the plaintiffs and defendants insisted that the judgment of the law should be entered by the Court, the former contending that it should be as proposed by them, and the latter as by them. The Court, however, declined to grant any judgment, but made an order staying further proceedings in the action, until the plaintiffs “should take proper steps in Wake Superior Court to have said judgment, (that in theSpecial Proceeding mentioned), declared irregularand set aside.” The plaintiffs did not ask for such stay — indeed they did not desire it, and plainly intimated that they did not deem it necessary, and would not take steps in a different tribunal, as suggested by the Court. If the plaintiffs had asked for such- stay, it may be that the Court, in its discretion, could have granted it, but it seems to us very clear, that as neither party desired it,-but on the contrary, insisted upon judgment, the Court ought to have granted it. When the case has been heard upon its merits, and nothing remains to be done but to give judgment, it is the duty of the Court to proceed at once to grant and enter it, neither party suggesting good cause for delay, unless the Court should desire to take time for further consideration.
A chief purpose of an action is to obtain the judgment of the law, in respect to the matter in litigation, and when the parties have pleaded, and have been fully beard according to the course of the Court, the party entitled, has the right to have it granted and it is error to refuse it — both parties insisting upon judgment —to enable one of the parties to take some action in another judicial tribunal, or elsewhere, suggested by the Court, not necessary to the final judgment, and especially is this so when that party signifies his purpose not to take such action. The Court can, in the exercise of its discretion, continue the case for a proper cause, of which it is the exclusive judge, but it ought not to do so for one not pertinent to, but beside, the action.
*579No doubt the Court might, in the course of the action, at the instance of the parties, or one of them, or in some cases, ex mero ■tu, direct the proceeding to be stayed, until something shall he done by the parties or one of them, or by some one, under the direction of the Court, necessary to a final judgment; but this power would be subject to the right of the plaintiff, in a proper case, to have a judgment of non-suit, or his action dismissed.
But it does not follow from what we have said, that the plaintiffs were entitled to the judgment demanded by them. The Court properly suggested that it could not declare the judgment in the special proceeding mentioned irregular, and set it aside. That judgment could not be attacked collaterally for such irregularity in it, or in the proceeding leading to it, as did not render it absolutely void. If it was merely voidable for irregularity, the proper remedy was a motion in the proceeding itself to set it aside for such cause. It could not be done in another proceeding or action in the same or a different Court. Keaton v. Banks, 10 Ired., 381; Vick v. Pope, 81 N. C., 22, Williamson v. Hartman, 92 N. C., 236; Fowler v. Poor, 93 N. C., 466. It would be otherwise if the judgment should be attacked for fraud. In that case, if the action were not determined, the judgment might be attacked for such cause by a proper petition in the action, but otherwise it could only be done by •another and independent action. Peterson v. Van, 83 N. C., 118; England v. Garner, 84 N. C., 212; Williamson v. Hartmam, supra.
It is true, that a judgment absolutely void, may be so treated and disregarded whenever and wherever it may come in question ; but the judgment in the Special Proceeding under consideration was not void; upon the face of the record, it was regular and valid. At most, it was only voidable for irregularity not apparent. It does not appear from the record that the plaintiff Joseph J. Williams was an infant. On the contrary, he and his mother, the plaintiff. Martha, were made parties to the proceedings by the service of a summons, and if he was an *580infant, that fact did not render the judgment void. It would,, for that cause, be only voidable, and might be set aside by a proper motion in the proceeding. Turner v. Douglass, 72 N. C., England v. Garner, 90 N. C., 197, and cases there cited.
The plaintiffs Martha and Joseph J., were parties, as appears,, to the special proceeding mentioned, and bound by the decree-therein. The land in question was sold in pursuance of that decree, and the contending defendants claim title under it. The plaintiffs are, therefore, estopped by the record to deny the title-of the defendants to the land. They had opportunity in the-proceeding to allege and establish their right to the land by virtue of the alleged lost deed, or otherwise. They were made-parties to the end they might do so, and as they did not, they are now estopped to claim title, while the record stands unimpeached by a proper proceeding. Gay v. Stancill, 92 N. C., 455.
It is said that, nevertheless the parties plaintiffs last mentioned, have the right to have the alleged lost deed re-executed to them. Wherefore? If the lost deed was found, or its place-supplied by another, it could not enable the plaintiffs to assert title to the land under it, in the face of the record in the Special-Proceeding mentioned. So far as appears from any allegation in-the complaint, they have no longer the slightest interest in it, and the Court will not do a vain and nugatory thing. If the plaintiffs had alleged and proven some right they could assert by, or a benefit they could derive from, the deed they seek to have re-executed, it might, be otherwise.
The purpose of this action is not to. attack the judgment in the Special Proceeding for fraud. Fraud is neither alleged nor proven.
So that, as the plaintiffs refused to act upon the suggestion oi the Court, it ought to have given judgment dismissing the plaintiffs action, without prejudice to their right to move to set aside the judgment in the special proceeding, and if that shall be done, then to take steps to have the lost deed reéxecuted, and t( assert any right they might have by virtue of it.
*581There is error. Let this opinion be certified to the Superior •Court according to law. It is so ordered.
Error. Reversed.