Holloway v. Durham

• Decision Date: 04 December 1918
• Docket Number: 325.
• Citation: 97 S.E. 486,176 N.C. 550
• Parties: HOLLOWAY v. CITY OF DURHAM.
• Court: North Carolina Supreme Court

97 S.E. 486

176 N.C. 550

HOLLOWAY v. CITY OF DURHAM.

No. 325.

Supreme Court of North Carolina

December 4, 1918

Appeal from Superior Court, Durham County; W. M. Bond, Judge.

Action by George W. Holloway against the City of Durham. Plaintiff offered to introduce evidence tending to sustain his cause of action; but, on an intimation of the court that he would hold a former judgment to be an estoppel in bar of any recovery plaintiff submitted to a nonsuit and appealed. Error.

An adversary judgment in personam will not conclude parties as to matters beyond the scope of their pleadings.

Where parties have defined and stated their rights and grievances by pleadings, duly filed, a consent judgment, foreign to subject-matter of litigation, should not be upheld unless it plainly appears that the parties intended such effect, and it should never be enlarged beyond the clear import of the terms they have used.

Plaintiff owning a tract of land on Ellerbee creek, in said county, in 1917, sued for damages thereto done by defendant in wrongfully dumping raw sewage into said creek, creating a nuisance and causing substantial injury to same, and also in the negligent operating of its septic tank and disposal plant, used in connection with the sewage system of the city. There was denial of liability by defendant, and also plea of estoppel by judgment, preventing any and all further recovery by plaintiff by reason of the matter and things set forth in the complaint. On the call of the present cause for trial, it appeared that, heretofore, in 1905, plaintiff had sued for similar damages to a tract of land in said county, abutting on said creek; the same being the tract on which plaintiff then resided with his family, etc. On denial of liability, at January term, 1917, that cause was compromised and consent judgment entered therein in terms as follows:

"This cause coming on to be heard before his honor, M. H Justice, judge presiding, and a jury trial being waived, it is now by consent ordered and adjudged that the plaintiff recover of the defendant the sum of $400, and the costs of this action to be taxed by the clerk of this court.

It is further ordered and adjudged that this judgment is in full compensation and payments of all damages sustained by plaintiff, his heirs and assigns, past, present, and prospective, for and on account of all the causes of action set forth and sued upon in plaintiff's complaint filed in this action, and also in full of all damages done or that may be done to plaintiff, his heirs and assigns, or to their property by the building, erection, and maintenance of the bacterial plant by defendant; the same being on a tract of land purchased by the city of Durham, from F. C. Geer and distant from plaintiff's land about 150 yards."

Which said judgment had been paid. It was further admitted on both sides that, when the former judgment was rendered, plaintiff in this action did not own the tract of land "he is now suing about," but bought same after said judgment was rendered. It also appeared that there was no allegation in the complaint that the disposal plant had been changed in any way so as to make the same different from what it was when the former judgment was rendered. Plaintiff offered to introduce evidence tending to sustain his cause of action; but, on an intimation of the court that he would hold said judgment to be an estoppel in bar of any recovery, plaintiff submitted to a nonsuit and appealed.

Brawley & Gantt, of Durham, for appellant.

J. L. Morehead, of Durham, for appellee.

HOKE J.

In order to an effective estoppel of record by an adversary judgment in personam, it is required that the court which rendered it should have "cognizance of the class of cases to which [it] * * * belongs" and should have acquired jurisdiction of the parties and of the subject-matter, and this question of jurisdiction of the subject-matter is determined by the controversy between the parties as presented and disclosed in their pleadings. This position, so stated by Chief Justice Beasely, in Munday v. Vail, 34 N. J. Law, 418, affirmed in Dodd v Una, 40 N. J. Eq. 672, 5 A. 155, was approved and applied here in Hobgood v. Hobgood, 169 N.C. 485-491, 86 S.E. 189, and recognizing this as the true test, it is held in numerous and well-considered cases here and elsewhere that such a judgment will conclude the parties as to all matters directly in issue and as to all matters within the "scope of the pleadings which were material and relevant and were in fact investigated and determined at the hearing." Propst v. Caldwell, 172 N.C. 594, 90 S.E. 757; Cropsy v. Markham, 171 N.C. 44, 87...