John L. Roper Lumber Co v. Elizabeth City Lumber Co

• Decision Date: 27 February 1906
• Citation: 140 N. C. 437,53 S.E. 134
• Court: North Carolina Supreme Court
• Parties: JOHN L. ROPER LUMBER CO. v. ELIZABETH CITY LUMBER CO.

53 S.E. 134

(140 N. C. 437)

JOHN L. ROPER LUMBER CO.

v.ELIZABETH CITY LUMBER CO.

Supreme Court of North Carolina.

Feb. 27, 1906.

1. Jugdment-—Res Judicata—Matters Concluded—Right to Damages.

In an action for trespass by cutting lumber, the complaint alleged ownership of the locus, while the answer averred ownership in defend-ant. The court submitted the issues of title and the further issue of whether defendant cut timber "on the lands described in the complaint." Counsel agreed, by stipulation, that if the jury should answer the issue as to title in the affirmative, the fact of the trespass should be taken as admitted, and the amount of the damages should be ascertained by reference. The jury answered the first two issues in the affirmative and the third in the negative. It was adjudged that plaintiff was entitled, upon the agreement of counsel and the verdict of the jury, to nominal damages and costs. Held, that the decision was a bar to a motion by plaintiff for the assessment of the damages, occasioned by the cutting of timber by defendant on the same land subsequent to the commencement of the action.

2. Same.

A verdict to the effect that defendant had not cut timber on. land described in the complaint, followed by a judgment of the court thereon, is conclusive, though there was a report in the case made by the defendant that timber had been cut on the land in question.

Appeal from Superior Court, Camden County; Shaw, Judge.

Action by the John L. Roper Lumber Company against the Elizabeth City Lumber Company. From an order denying a motion for the assessment of damages, plaintiff appeals. Affirmed.

This cause was before us, on appeal by both parties, at February term, 1904 (135 N. C. 742, 744, 47 S. E. 757) and again, on petition to rehear, at February term, 1905 (137 N. C. 431, 49 S. E. 946). We held in the first of the above-reported cases that the plaintiff was not entitled to judgment declaring it to be the owner of the land, as the recovery of the land was not the object contemplated when the suit was brought, and was not within its intended scope, but only the recovery of damages for a trespass in cutting and removing timber. A simple judgment dismissing the action was directed to be entered for the defendant. Plaintiff filed a petition to rehear the case, and we then held that there was error in the former judgment, and that plaintiff was entitled, upon the agreement of counsel and the verdict of the jury, to nominal damages and costs. The judge, on plaintiff's motion, had enjoined the defendant from cutting timber on the land In dispute, unless it should give bond to pay all damages the plaintiff sustained by reason of the modification of the order for the injunction. The bond was given and the defendant was thereupon permitted to continue the cutting of timber on the land. When the case was again called in the lower court, the plaintiff's counsel moved that judgment be entered for nominal damages and costs, according to the mandate of this court, and, further, that the damages sustained by the cutting of the timber since the suit was brought be inquired into and assessed by a jury or ascertained by a reference, as was proper, and that it have judgment for the amount so ascertained. This motion was denied, and plaintiff excepted, and the case is again brought here by ap peal of the plaintiff from the order denying its motion. The facts are so fully stated in the former reports of the case that it is unnecessary to reproduce them here.

W. M. Bond and W. B. Rodman, for appellant.

Aydlett & Ehringhaus, for appellee.

WALKER, J. (after stating the facts.) The motion of the plaintiff, as stated in the argument before us, is based upon the contention that the former judgment for nominal damages and costs does not preclude a recovery of damages accrued since the action commenced, as in an action of trespass, such as this is, damages can only be assessed to the date of issuing the writ or summons, and not to the time of the trial, and therefore no inquiry was made in the former trial as to any damage sustained since the action commenced. He relies on the case of Jones v. Kramer, 133 N. C. 446, 45 S. E. 827, in support of this position. We do not think that decision has any application to the facts of this case. Counsel, as it appears, agreed, before the trial in the court below, that If the jury should answer the first issue, as to title, "Yes, " the fact that defendant had trespassed should be taken as admitted, and the amount of the damages should be ascertained by a reference under the Code. The jury did give affirmative answers to both the first and second issues, which related to the title, or ownership of the land; but Judge Justice, who presided at the trial, submitted a third issue as follows: "Has the defend-and cut timber or committed other acts of trespass on the lands described in the complaint and inside the Weeks and Valentine grants?" To this Issue the jury responded in the negative. In referring to this phase of the case, this court, by Douglas, J., in 135 N. C., at page 743, 47 S. E. 757, said: "The plaintiff brought a civil action in the nature of trespass, alleging its ownership of the land in question and the defendant's trespass thereon. The jury found in substance that the plaintiff owned a part of the lands described in the complaint, but that the defendant had not trespassed upon those particular lands. This was the practical result of the verdict." And the learned justice, for the court, then added: "And its legal effect was to entitle the defendant to a judgment that it go without day and recover its costs." On the rehearing we practically affirmed what was first said by the court as to the legal effect of the answer to the third issue, but we held that the other part of the decision, which we have just quoted, did not give proper force and effect to the agreement of counsel, and the general result was declared to be that plaintiff was entitled to recover nominal damages, under the agreement and the finding of the jury upon the first and second issues, but that it was not entitled to any substantial damages, as it was perfectly apparent, from the judge'scharge and the response to the third issue, the jury had found that plaintiff had failed to show that its paper title covered the locus in quo, or that any actual trespass had been committed by cutting timber or otherwise.

As said by Justice Douglas ...