Garner v. Garner, 528

• Decision Date: 14 December 1966
• Docket Number: No. 528,528
• Citation: 268 N.C. 664,151 S.E.2d 553
• Court: North Carolina Supreme Court
• Parties: Eunice Mai GARNER v. Robert John GARNER.

Page 553

151 S.E.2d 553

268 N.C. 664

Eunice Mai GARNER v. Robert John GARNER.

No. 528.

Supreme Court of North Carolina.

Dec. 14, 1966.

Robert T. Hedrick and John V. Hunter, III, Raleigh, for plaintiff.

Liles & Merriman, Raleigh, for defendant.

BRANCH, Justice.

The sole question presented is whether the court below erred in dismissing plaintiff's cause of action on the ground of Res judicata.

The doctrine of Res judicata applies to divorce actions as well as other civil actions. Thurston v. Thurston, 99 Mass. 39; Miller v. Miller, 92 Va. 196, 23 S.E. 232; Dwyer v. Dwyer, 26 Mo.App. 647; Ford v. Ford, 25 Okl. 785, 108 P. 366, 27 L.R.A., N.S., 856; Prall v. Prall, 58 Fla. 496, 50 So. 867, 26 L.R.A., N.S., 577; Lee: N.C. Family Law, Vol. 1, Sec. 51, p. 213--Joinder of Causes.

The appellant contends that the provision of G.S. § 50--16 (as amended in 1955) granting the wife the remedy of independent action or cross-action where the husband sues for divorce, precludes application of the principle of Res judicata. The statute provides, Inter alia, that where a husband wrongfully abandons his wife, 'the wife may institute an action in the superior court of the county in which the cause of action arose to have reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband, or she may set up such a cause of action as a cross action in any suit for divorce, either absolute or from bed and board.' Thus, the wife has an Alternate method of procedure which she may use At her election. Beeson v. Beeson, 246 N.C. 330, 98 S.E.2d 17. The right to choose procedure has no effect on the principles of Res judicata. Therefore, this portion of the appellant's contention is without merit.

The appellant also contends that the court erred in dismissing the action because the second action was based on an alleged abandonment occurring at a date later than the abandonment alleged in the first action. This contention is not tenable.

"The principles governing estoppels by judgment are established by a long line of decisions in this and other states, and we have no desire to take a new departure which will shake the long-settled law as to Res judicata. This rule is thus stated in 1 Herman Estoppel, § 122, and is fortified by a long list of leading authorities there cited: 'The judgment or decree of a court possessing competent jurisdiction is final as to the subject-matter thereby determined. The principle extends further. It is not only final as to matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. * * * This extent of the rule can impose no hardship. It requires no more than a reasonable degree of vigilance and attention; a different course might be dangerous and often oppressive. It might tend to unsettle all the determinations of law and open a door for infinite vexation. The rule is founded on sound principle."' Moore v. Harkins, 179 N.C. 167, 101 S.E. 564. This principle was again recognized by this Court when Barnhill, J. (later C.J.), speaking the for the Court in the case of Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822, said: 'A judgment rendered in an action estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, In the exercise of reasonable diligence, could and should have brought forward. * * * The whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He can neither Split up his claim nor divide the grounds of recovery.' (Emphasis ours) See also Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909, and Wilson v. Hoyle, 263 N.C. 194, 139 S.E.2d 206.

In the instant case plaintiff filed verified pleadings on 12 October 1965, stating 'that the plaintiff abandoned the cross-complainant on the 29th day of November 1964, and has lived continuously separate and apart from the cross-complainant since that time.' The plaintiff stood by this allegation for more than eight months, and after the jury returned a verdict finding that the defendant did not abandon the plaintiff, she three days later commenced an action based on the same cause, between the same parties only stating a different date of abandonment. It is apparent that the plaintiff by exercising a reasonable degree of attention or vigilance must have known the actual date of abandonment, if any. There...