Craver v. Spaugh

• Decision Date: 31 January 1947
• Docket Number: No. 740,740
• Citation: 41 S.E.2d 82,227 N.C. 129
• Court: North Carolina Supreme Court
• Parties: CRAVER et al. v. SPAUGH.

41 S.E.2d 82

227 N.C. 129

CRAVER et al.

v.SPAUGH.

No. 740

Supreme Court of North Carolina.

Jan. 31, 1947.

.

Appeal from Superior Court, Forsyth County; J. A. Rousseau, Judge.

Action by Charles Arthur Craver and Luna L. Craver against Wm. E. Spaugh, Administrator of Laura Hanes, deceased. On motion of plaintiffs, the defendant's plea in bar was heard preliminary to trial. Judgment dismissing the action, and plaintiffs appeal.

Affirmed.

Civil action heard on plea in bar.

This action was instituted June 26, 1946 after the opinion in Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525, was rendered. The first and second causes of action alleged in the complaint in the former action are restated in identical language. The defendant sets up the same defenses pleaded in the former action. In addition he alleges and asserts that plaintiffs are estopped to maintain this action (1) by the judgment of nonsuit or dismissal entered at the February term, 1946, and, (2) by the judgment of Pless, J., entered at the March term, denying the motion of the plaintiffs to vacate the judgment entered at the February term, as affirmed on appeal, Craver v. Spaugh, supra, and he pleads said judgments as a bar to any recovery in this action.

On motion of plaintiffs the plea in bar was heard preliminary to trial and sustained. Judgment dismissing the action was entered and plaintiffs appealed.

John J. Ingle, of Winston-Salem, and Walser & Wright, of High Point, for plaintiffs-appellants.

Ratcliff, Vaughn, Hudson & Ferrell and T. D. Carter, all of Winston-Salem, for defendant-appellee.

BARNHILL, Justice.

The judgment dismissing the former action entered at the February term, 1946, is not, on this record, a bar to the maintenance of this action. G.S. § 1-25. A former judgment of nonsuit is res judicata as to a second action when and only when it is made to appear that the second action is between the same parties, on the same cause of action, and upon substantially the same evidence. Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266; Batson v. City Laundry Co, 206 N.C. 371, 174 S.E. 90. The plea cannot be determined from the pleadings alone. DixDowning v. White, 206 N.C. 567, 174 S.E. 451; Buchanan v. Oglesby, 207 N.C. 149, 176 S.E. 281; Batson v. City Laundry Co, supra; Hampton v. Rex Spinning Co, supra.

Does the judgment entered at the March term, denying the motion of plaintiffs to vacate the judgment of dismissal, as affirmed by this Court, Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525, bar the plaintiffs' right to maintain this action? We are constrained to answer in the affirmative.

There were two ultimate questions of fact at issue at the hearing on that motion: (1) excusable neglect, and (2) meritorious cause of action. On the second question the court found as a fact that "the plaintiffs do not have a meritorious cause of action, and have no reasonable hope of successfully prosecuting their alleged claims." The full import of this conclusion can be appraised only by a review of the particular facts upon which it was based.

The alleged cause of action for services rendered was barred by the three-year, G. S. § 1-52(1), and the six-months, G.S. § 28-112, statutes of limitations at the time the first action was instituted September 8, 1945, unless there was a valid and enforceable agreement not to plead such statutes in defense. It does not clearly appear whether the claim on which the second cause of action is bottomed was asserted in the claim filed July 10, 1942. If so, it is barred by G.S. § 28-112, and if not, the alleged conversion occurred more than three years prior to the institution of the first action to recover therefor. G.S. § 1-52(1). So then, this claim was likewise stale and unenforceable unless kept alive by the asserted contract not to plead the statutes of limitations.

It follows that before the court below could conclude or find plaintiffs had no meritorious cause of action it was compelled to make the preliminary particular finding (1) that the asserted claims were barred by the statutes of limitations pleaded by defendant, and (2) there was no valid enforceable agreement by defendant not to plead the bar of said statutes.

When the judgment below does not set forth in detail the facts found by the court and there is no request for such find ings, it is presumed that the court, upon proper evidence, found the essential facts necessary to support the judgment entered. McCune v. Rhodes-Rhyne Mfg. Co, 217 N. C. 351, 8 S.E.2d 219, and cases cited.

When a fact has been directly tried and decided it cannot be contested again between the same parties or their privies in the same or any other court. Bennett v. Holmes, 18 N.C. 486; Armfield v. Moore, 44 N.C. 157; Dawson v. Wood, 177 N.C. 158, ...