(after stating the case). We are of opinion that this action should have been dismissed, upon the ground that the remedy of the plaintiffs was by a proper motion in the action of ejectment referred to, in which the judgment complained of was entered. In that action, notice was given, as we must assume, in the orderly course of procedure in such cases, and Gooch, the defendant therein, appeared and pleaded. At the time of the trial thereof, there was no suggestion and proper proof of the fact that he had, before that time, died. The plaintiffs in that action could not make such suggestion, because, as appears, they had no knowledge of the fact of his death. In the absence of such suggestion, the presumption was, that he was then -living. The Court had obtained jurisdiction of him in the action, and apparently it continued to have itj in all respects, at the time of the trial and the entry of the judgment. The latter was, therefore,mot void. It was, on such account, irregular and voidable, and might, under the present method of civil procedure, be declared void by the Court, upon a proper application, by motion, in the action. That might be made by any person having right under, or derived from, the deceased *515defendant therein, after the action began. This, as to the party who may make the motion, is allowable, because, the defendant in the action having died before the judgment was entered, he could not make it. and, in such case, no presumption arises, that he assented to and was satisfied with it. Ordinarily, only the defendant, against whom an irregular judgment is given, can complain of it. If he does not, the presumption is, that he is satisfied with it. It is otherwise, where he was dead at the time the judgment was given. Shelton v. Fels, Phil., 178; Jacobs v. Burgwyn, 63 N. C., 196; Burke v. Stokely, 65 N. C., 569; Hervey v. Edmunds, 68 N. C., 243; Rollins v. Henry, 78 N. C, 342; Hinsdale v. Hawley, 89 N. C., 87.
It was not according to the course of the Court, to try an action regularly at issue, and give judgment against a party thereto, of which it had regularly obtained jurisdiction and apparently continued to have the same, which, in fact, it had ceased to have, by reason of that party’s death. A judgment thus granted is not simply erroneous, as it certainly is, but it is as well irregular, and may be set aside upon proper application in the action. All irregular judgments are in a sense erroneous, but they may be set aside in a proper case for such irregularity, if application be made within a reasonable period of time. Lynn v. Lowe, 88 N. C., 478, and numerous cases there cited; Williamson v. Hartman, 92 N. C., 236; Fowler v. Poor, 93 N. C., 466.
It is well settled by many decisions of this Court, that a judgment cannot be attacked collaterally, or by an independent action, for mere irregularity. The remedy in such case is, as we have indicated above, by motion in the action in which the irregularity complained of appears.
The plaintiffs contend, however, that they seek relief by injunction against the execution in the hands of the defendant Sheriff, and as the action of ejectment, in which it issued, was brought before the Code of Civil Procedure was enacted, *516the latter does not apply to it, and the Court cannot grant such relief in that action. This is a misapprehension of the provisions of the statute (Bat. Rev., ch. 17, § 402,) applicable. It is true that it provides that such “ suits shall be proceeded in and tried under the existing laws and rules applicable thereto,” at and before the time the Code of Civil Procedure took effect, but it further provides, that “ after final judgment shall be rendered therein, the Clerk shall enter such judgment on the execution docket required to be kept by him, and the subsequent proceedings shall be as provided for actions hereafter to be commenced.” The judgment in question had been rendered in the action of ejectment, and the relief, sought after judgment, might — ought—to have been applied for, just as if the action had been brought subsequent to the enactment of the Code of Civil Procedure. The Court could grant all appropriate relief in equity in that action after judgment, upon proper application, and in it as well as in an independent action, as the Superior Courts administer the principles of law and equity, under the prevailing method of civil procedure, in the same action. An independent action was unnecessary; indeed, it was improper. Such action will not be allowed when the relief or remedy demanded may be had in an existing action. Long v. Jarratt, 94 N. C., 443, and the cases there cited.
The plaintiffs might, therefore, have obtained all the relief they demanded by their complaint, as at first filed in the action of ejectment referred to, which was pending and is still pending, for all proper purposes contemplated by it. Their present action must, therefore, Jae dismissed without prejudice to them.
Error.