after stating the case: The special proceeding in this case is in the Superior Court, and the Clerk thereof, in making the orders complained of, was acting as, and for, that Court, and not exercising his own jurisdictional functions, as he might do in matters of probate and other matters as to which he has special jurisdiction conferred by the statute (The Code, §§ 102-116). Neither the Clerk, acting for tlie Court in vacation, nor the Court — Judge in term-time— had authority in the special proceeding to remove the administrator. Separate appropriate application for such removal should have been made to the Clerk, exercising his jurisdictional authority as pointed out in Edwards v. Cobb, 95 N. C., 4, and the cases there cited. The Court, therefore, properly refused to entertain the motion to remove the plaintiff administrator.
*334The judgment complained of, and the proceedings leading to and underlying it, might be set aside upon proper application of a party within a reasonable time, for any material irregularity therein, although the special proceeding be ended. And if such proceeding be not ended, any proceeding, order or judgment thereof affected by fraud, might, upon proper application therein, be declared void, and set aside on that account. It would be otherwise, however, as to such fraud, if the proceeding were ended In that case the fraudulent judgment could be attacked only by a separate, independent action. This is settled by many decisions. Peterson v. Vann, 83 N. C., 118; England v. Garner, 84 N. C., 212; Thompson v. Shamwell, 89 N. C., 283 ; Williamson v. Hartman, 92 N. C., 236; Fowler v. Poor, 93 N. C., 466; Burgess v. Kirby, 94 N. C., 575 ; Syme v. Trice, 96 N. C., 243; Mock v. Coggin, 101 N. C., 366.
It does not appear that there was any irregularity affecting materially the substance of this special proceeding. It was brought, and. so far as appears, conducted as prescribed by the statute applicable, and according to the course and practice of the Court. The Court, therefore, properly declined to set the judgment aside for irregularity.
But the appellant’s counsel earnestly contended on the argument here that the special proceeding is not ended by a final judgment therein, and. therefore, the appellant should be allowed, by a motion or petition in the cause, to attack the order of sale, the sale and the judgment confirming the same, for the alleged fraud of the plaintiff, as specified in the affidavit produced in support of his motion. We think this contention not well founded. The order of sale, the sale of the land, the report thereof to the Court, and the judgment confirming the same, settled, disposed of, and concluded the subject-matter of the special proceeding — nothing material remained to be done but to enforce the final judgment. All the proper parties being before the Court, its purpose was to *335grant a license to the plaintiff to sell the land specified of the intestate to make assets to pay debts of the latter. The license, in the course of orderly procedure, was granted, the sale was made and confirmed, and the commissioner directed to make title. That was the orderly end — the conclusion of the matter to^be litigated, considered and determined.
A final judgment in an action or special proceeding, does not imply, or intend, that no further motion, order, judgment or other appropriate proceeding shall not be made and had to enforce it. It implies that the cause of action — the subject-matter of litigation — as to its merits, has been litigated, heard, considered, settled, determined and concluded by the Court having jurisdiction of the parties and the cause of action. Hence, it was said, in Flemming v. Roberts, 84 N. C., 532: “But, aside from the unambiguous terms in which the determination of the cause is expressed, where a decree decides that the whole merits of a cause without any reservation for further directions for the future judgment of the Court, that constitutes a final decree; and after it has been pronounced, the cause is at an end, and no further hearing can be had.” Latta v. Vickers, 82 N. C., 501; Peterson v. Vann, 83 N. C., 118; Syme v. Trice, 96 N. C., 243; Smith v. Fort, decided at this term.
The rule of practice is that a final judgment affected adversely by irregularity in the course of action, may be set aside by a simple motion in the cause, if made within a reasonable time; but after final judgment, although the action be not ended, for the purpose of enforcing and giving effect to the same it can be attacked for fraud only by an independent action. Irregularity in actions is ordinarily simple and may usually be readily disposed of by mere motion, but to attack a final judgment is very serious and attended generally with considerable complication of facts, and should be litigated by proper pleadings in an action brought for the purpose. Two or three cases may be found *336in which it was held that a final judgment might be attacked for fraud by a motion in the cause, but the prevailing rule of practice is as stated above, as the cases cited, and others not cited, abundantly show. It may be added, that, in some cases, it is difficult to determine when the judgment is final, and this has given rise to some conflict of decisions. In the present case, however, it is clear that the judgment confirming the sale of the land was final, although some possible motion or further action might be taken to give it effect. It is quite as clear that the appellant’s cause of complaint is that the sale of land was fraudulent, and the judgment confirming the same was procured by-the fraud of the plaintiff. The remedy is by an independent action and not by a motion.
Judgment affirmed.