Current v. Webb

• Decision Date: 26 November 1941
• Docket Number: 534.
• Citation: 17 S.E.2d 614,220 N.C. 425
• Parties: CURRENT v. WEBB et al.
• Court: North Carolina Supreme Court

17 S.E.2d 614

220 N.C. 425

CURRENT v. WEBB et al.

No. 534.

Supreme Court of North Carolina

November 26, 1941

Motion to vacate purported service of summons upon defendant Cleve Webb. From judgment denying the motion, defendant Webb appealed.

H B. Gaston, of Belmont, and Cherry & Hollowell, of Gastonia, for applellee.

Helms & Mulliss, of Charlotte, for appellant Cleve Webb.

DEVIN Justice.

This appeal presents the question of the validity of the service of process upon defendant Cleve Webb, the same person referred to in Bangle v. Webb, 17 S.E.2d 613, where upon substantially the same evidence a ruling as to his amenability to service under the same circumstance was considered and determined.

These two cases are companion cases and were argued together in this court. They arose out of the same transaction. Both plaintiff's intestate and the plaintiff in the Bangle case were injured at the same time and place, while passengers in an automobile driven by defendant Webb. The same acts of negligence on the part of Webb and others are alleged. In each case damages are sought against the same defendants for the same tort. Both the motions for quashal of the purported service of summons on defendant Webb, and the facts underlying, are practically identical in the two cases. The service in both cases was made by the same officer at the same time.

In the Bangle case substantially the same evidence in the instant case was presented to Judge Armstrong who found the facts to be that at the time of the attempted service of process on defendant Webb he was a resident of the State of Georgia and had come into North Carolina in obedience to a summons from the Coroner of Mecklenburg to attend and testify at an inquest, and that therefore under the statute (§ 4, ch. 217 Public Laws 1937) he was exempt from service of process in connection with matters which arose before his entrance into the state under the summons. Judge Armstrong adjudged that the purported service was invalid and dismissed the action was entered May 29, 1941, and upon appeal has been affirmed by this court.

Subsequently at the August Term, 1941, of Gaston Superior Court, from substantially the same evidence, Judge Nettles found the facts to be that the defendant Cleve Webb was a resident of North Carolina at the time of service of process, and that he was not exempt from service under the statute referred to. Judgment was entered accordingly holding the service valid.

Thus it appears that at the time Judge Nettles made his ruling there was a previous judgment of the Superior Court, now affirmed on appeal, declaring that service on defendant Cleve Webb at the same time and place and under identical circumstances growing out of the same transaction, was invalid because he was a nonresident of North Carolina and had come into the state in obedience to a subpoena to testify as a witness.

We are constrained to hold that while there was evidence tending to support the ruling of Judge Nettles, the facts determined by the previous judgment in the Bangle case had become res judicata. The status and residence of the defendant Cleve Webb had become judicially established. His exemption from service of process, at the time and place attempted, had been determined by a competent court. Harshaw v. Harshaw, 220 N.C. 145, 16 S.E.2d 666. The application of the rule that a judgment determining the existence of a fact is conclusive upon parties and privies is not necessarily precluded by showing that the judgment was rendered by a court in another county, or that the parties are not in all respects identical. "There is no doubt that a final judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes...