Hayes v. Ricard, 253

• Decision Date: 14 January 1960
• Docket Number: No. 253,253
• Citation: 112 S.E.2d 123,251 N.C. 485
• Parties: Virginia Lamm HAYES and husband, J. F. Hayes, Bessie H. Lamm, Zelma Lamm Poythress and husband, T. M. Poythress, Tempie Ann Hayes and Jack Thomas Hayes, Infants appearing herein by their Next Friend, J. W. Harrison, v. Eunice Williamson Decker RICARD and Free Will Baptist Orphanage, Inc., and H. G. Connor and Charles B. McLean, Trustee.
• Court: North Carolina Supreme Court

Page 123

112 S.E.2d 123

251 N.C. 485

Virginia Lamm HAYES and husband, J. F. Hayes, Bessie H.

Lamm, Zelma Lamm Poythress and husband, T. M. Poythress,

Tempie Ann Hayes and Jack Thomas Hayes, Infants appearing

herein by their Next Friend, J. W. Harrison, v. Eunice Williamson Decker RICARD and Free Will Baptist

Orphanage, Inc., and H. G. Connor and Charles B.

McLean, Trustee.

No. 253

Supreme Court of North Carolina.

Jan. 14, 1960

Lamb, Lamb & Daughtridge by Vernon F. Daughtridge, Jr., Wilson, and Cooley & May by Hubert E. May, Nashville, for plaintiffs, appellants.

Gardner, Connor & Lee, Wilson, for defendants Eunice W. Ricard, H. G. Connor and Charles B. McLean, Trustee, Appellees.

PARKER, Justice.

On 5 September 1958 the defendants Ricard, Connor, and McLean, Trustee, requested the Clerk of the Superior Court of Wilson County to place this action on the pre-trial docket. On 7 January 1959, Judge Frizzelle ordered that this case be set for trial peremptorily as the first case for trial at the June 1959 Civil Term of the Superior Court of Wilson County.

At the June 1959 Term, Judge Frizzelle entered what is designated as a 'Pre-Trial Order,' which is in substance: Plaintiffs moved for a continuance. Judge Frizzelle denied the motion, and plaintiffs excepted. Defendant Ricard moved that her pleas in bar be heard and determined prior to the trial on the merits. Judge Frizzelle, in his discretion, granted defendant Ricard's motion, and set the hearing of the pleas in bar for 22 June 1959. Plaintiffs excepted to the order.

Judge Frizzelle, without a jury, heard the pleas in bar of defendant Ricard. Defendant Ricard offered in evidence her answer containing her pleas in bar of estoppel by judgment and res judicata. At this point plaintiffs' counsel read to Judge Frizzelle their reply to defendant Ricard's pleas in bar and counterclaim. Then defendant Ricard in support of her pleas in bar offered in evidence the following: the pleadings in the first action on the second appeal to this Court, with the two deeds attached as exhibits to the amended complaint; the judgment of Judge George M. Fountain, entered at the September 1956 Civil Term, nonsuiting plaintiffs' first action; the appeal entries on the second appeal; the summons in the first action with the Sheriff's return; the proceedings making additional parties in the first action; the opinion of this Court on the second appeal, which is reported in 245 N.C. 687, 97 S.E.2d 105; a transcript of the record in the trial of the first action, which resulted in the second appeal to this Court, containing the testimony of Mrs. Annie Parker Phillips, of Mrs. Nana Louvinia Parker, of George A. Barfoot, of Mrs. Bessie Lamm, of R. H. Jackson, and B. F. Varnell, all witnesses for plaintiffs, in the form of questions and answers; and also containing copies of the deed from Nana Louvinia Parker and others to R. A. Stamper and wife, of the deed from R. A. Stamper and wife to Grover T. Lamm, of the deed from R. A. Stamper and wife to defendant Ricard, who was then Eunice Williamson Decker, and stipulations and comments of counsel. Defendant Ricard also introduced some immaterial pleadings, e. g., her answer to the original complaint, when the first action was tried twice in the Superior Court resulting in two appeals to this Court on an amended complaint, and the original complaint is not in either of the records of those two appeals.

Plaintiffs offered in evidence before Judge Frizzelle the following: The testimony of W. A. Lucas, in the form of questions and answers, given at a former trial of the first action before Judge Carr in November 1954. Incorporated in W. A. Lucas' testimony is a copy of the Will of Grover T. Lamm. Plaintiffs also offered in evidence a copy of a will and copies of deeds in reference to the land which is the subject matter of this present action. Plaintiffs also offered in evidence a transcript of the testimony of defendant Ricard given in the first trial of the hearing before Judge Carr, largely in the form of questions and answers. Judge Frizzelle excluded this testimony as irrelevant, but permitted counsel to read it into the record.

Judge Frizzelle entered a judgment in substance: Plaintiffs' complaint in the case fixes their alleged cause of action as one in the nature of ejectment, and fixes their claim of title to the land described in their complaint as being derived from R. A. Stamper and wife. That a prior action upon the same alleged cause of action, and seeking the same relief, was instituted in the Superior Court of Wilson County by summons issued 24 December 1952. The parties plaintiff in the prior action were the same as the parties plaintiff in this action. The parties defendant in the prior action were the same as the parties defendant in this action, with the exception of H. G. Connor and Charles B. McLean, Trustee, both of whom aver they have acquired interests in the land, the subject matter of this action, from the defendant Ricard. Plaintiffs' first action was tried at the September 1956 Civil Term of the Superior Court of Wilson County. At said trial plaintiffs sought to establish their alleged cause of action by showing that they and the defendant Ricard claimed title to the locus in quo from a common source, to wit, R. A. Stamper and wife. At said trial plaintiffs introduced evidence to support their alleged title from the common source, and introduced further evidence to support defendant Ricard's claim of title from the common source. Plaintiffs offered nothing by way of attack upon the title of defendant Ricard. After plaintiffs had closed their evidence, defendant Ricard moved for judgment of nonsuit. Thus, squarely presented, was the question for legal determination: Which claim of title from the common source was the better? The trial judge entered judgment of nonsuit, and dismissed plaintiffs' action. Upon appeal to the Supreme Court, the judgment was affirmed, and the Supreme Court held that plaintiffs proved themselves out of court by showing a superior title in defendant Ricard from the common source. Plaintiffs' claim to the locus in quo rests solely upon it being determined in this action that they hold the better title than defendant Ricard from R. A. Stamper and wife. That question was judicially determined adverse to plaintiffs in a prior action. Thus, a fact essential to plaintiffs' action, that defendant Ricard holds the better title from R. A. Stamper and wife, has been directly tried and decided. This essential fact cannot be contested again between the same parties, or their privies, in the same or any other court. Plaintiffs are estopped to deny the aforestated particular fact, which is essential to the cause of action alleged in their complaint. At the former trial the way was open to plaintiffs to attack defendant Ricard's claim of title, that they had offered in evidence, upon any and all existing grounds, both legal and equitable. It was incumbent upon them to bring forward, and assert their whole case. Plaintiffs have had their day in court, and have had the opportunity to disprove defendant Ricard's claim of title that they, the plaintiffs, offered in evidence. They have waived their right to assert and prove their attack alleged in the complaint in this case on defendant Ricard's claim of title. Whereupon, Judge Frizzelle adjudged and decreed that the pleas in bar of the defendants Ricard, Connor and Charles B. McLean, Trustee, be allowed, and dismissed plaintiffs' action. Plaintiffs are estopped to relitigate the question as to whether they or defendant Ricard hold the better title to the land described in the complaint from R. A. Stamper and wife, a common source; and the judicial determination of the former action, which was affirmed in the Supreme Court, operates as an estoppel, and as res judicata against plaintiffs to maintain this action.

Plaintiffs assign as error the refusal of the court to grant them a continuance to a subsequent term. The granting or denying of a motion for a continuance rests in the sound discretion of the presiding judge, and his decision will not be disturbed on appeal, except for abuse of discretion. No abuse of discretion has been shown. This assignment of error is overruled. Better Home Furniture Co. v. Baron, 243 N.C. 502, 91 S.E.2d 236.

Plaintiffs assign as error the court's hearing defendant Ricard's pleas in bar prior to the trial of the action on its merits. The pleas in bar of defendants Ricard, Connor, and McLean, Trustee, deny plaintiffs' right to maintain the action, and if established, will destroy their action. 'Ordinarily, it is for the trial judge, in the exercise of his discretion, to determine whether in the circumstances of a particular case a plea in bar is to be disposed of prior to trial on the merits of plaintiff's alleged cause of action.' Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861, 862. This assignment of error is overruled.

Plaintiffs contend in their brief that the pleas in bar were heard, and determined at a pre-trial conference. It is manifest from a study of the record that the pleas in bar were not heard, and determined at a pre-trial conference, but were heard, and determined at a regular term of court, in open court, according to the practice of the Superior Courts of the State.

Plaintiffs in their brief contend that the evidence offered in defense of the pleas in bar was admitted without proof of authenticity, 'and that counsel for said defendant proceeded to offer such evidence without a stipulation as to its authenticity.' On page 63 of the record, we find this: 'The authenticity of the records offered by both parties admitted by both parties. J. P. F., Judge.' There seems to be no merit to this contention.

The general rule is well settled that the doctrine of res judicata, whereby a judgment bars a subsequent action on the same cause of action, and renders the judgment conclusive on the issues...