Mann v. Mann

• Decision Date: 06 November 1918
• Docket Number: 18.
• Parties: MANN ET AL. v. MANN ET AL.
• Court: North Carolina Supreme Court

97 S.E. 175

176 N.C. 353

MANN ET AL. v. MANN ET AL.

No. 18.

Supreme Court of North Carolina

November 6, 1918

Allen and Brown, JJ., dissenting.

Appeal from Superior Court, Hyde County; Bond, Judge.

Proceedings to establish drainage district by S. S. Mann and others against T. C. Mann and others. Motion to amend judgment overruled, and motioners appeal. Affirmed.

Where collection of drainage assessment was sought to be enjoined on ground that petition for organization of district recited agreement restricting amount of assessment, the judgment denying injunction on ground that the agreement was void, as against policy of the law, precludes court, in proceedings between same parties, on motion to amend decree establishing district, from amending decree so as to include the restriction.

The object of the original proceeding was to establish a drainage district composed of the lands covered by the waters of Mattamuskeet Lake, and those lands within two miles of its shores, under the Laws of 1909, cc. 442 and 509. The clerk of the superior court appointed a board of viewers, and thereafter such proceedings were had as were authorized by the statutes. Exceptions were filed by many of the parties which were heard and considered by the court, and finally the district was established by judgment of the court to be known as "Mattamuskeet Lake Drainage District." It is now alleged that there was omitted from the final judgment this important provision:

"Your petitioners join in the foregoing petition in this proceeding upon the express condition that after the proper drainage of the said proposed district is effected, as set out in this petition or as may be adopted by the proper authorities as provided for herein and the by-laws authorizing same, then the cost of maintaining and keeping the proper drainage in effect shall not exceed 15 cents per acre for each acre included within the bounds of said district"

--by the mistake or inadvertence of the court and parties, and the petitioners ask that the judgment be amended by inserting the said clause, so as to restrict the power of assessment by the board of drainage commissioners for the the costs and expenses of maintaining the district within the prescribed limits, as intended by the parties to be done.

The clerk of the court, before whom the motion to amend the judgment was made, entered the following judgment therein:

"After hearing the evidence and argument of counsel, I find the following facts, to wit:

(1) That it was the intention of the parties to this proceeding that the final judgment should contain words in substance the same as those set out in the original petition, as follows: 'After the proper drainage of the said proposed district is effected, as set out in this petition or as may be adopted by the proper authorities, as provided for hereunder and by the laws authorizing same, then the cost of maintaining and keeping proper drainage in effect should not exceed 15 cents per acre for each acre of land included within the bounds of said district as to all other lands except those embraced in the lake bottom, and as to them shall not exceed 45 cents per acre.' And that the said language, or the same in effect, was omitted from the judgment by mistake and inadvertence.

(2) That the parties to this proceeding had no notice that said language, or language to the same effect, was not set out in said judgment until twelve months before the filing of this motion.

And upon said findings of fact it is ordered and adjudged that the said final judgment in this proceeding be, and is hereby altered and amended so as to contain the aforesaid omitted words.

The movants will recover their costs.

This 2d day of May. 1918.

S. D. Mann,

Clerk Superior Court, Hyde County."

The respondents, Board of Drainage Commissioners of Mattamuskeet Lake District, New Holland Farms, Inc., and the North Carolina Farms Company, excepted to the judgment, and appealed to the superior court, where the presiding judge refused to amend the judgment, upon the ground that it would seriously affect the rights of innocent parties who had bought bonds to a large amount issued on behalf of the district, and also others who had purchased lands included in the district, all of whom had acted upon the correctness of the judgment as it now is, and who, therefore, would be greatly prejudiced by any such change in the former judgment. He directed judgment to be entered accordingly, and the motioners appealed to this court.

Other facts will be found in the two cases above mentioned as reported in 156 N.C. 183, 72 S.E. 380, and 175 N.C. 5, 94 S.E. 695, to which reference is again made.

Ward & Grimes and H. C. Carter, Jr., all of Washington, N. C., for appellants.

Spencer & Spencer, of Swanquarter, and Small, MacLean, Bragaw & Rodman, of Washington, N. C., for appellees.

WALKER, J. (after stating the facts as above).

This case was before us at a former term, under a different name ( Gibbs v. Drainage Commissioners of Mattamuskeet Lake District, 175 N.C. 5, 94 S.E. 695), upon an application for an injunction to restrain the collection of a tax by the board of drainage commissioners in excess of the amount as fixed in the clause of the petition above set forth. The case also was here at a still earlier term, when one of the parties sought to restrain by injunction the issuing of $100,000 of bonds to pay interest on a previous issue of bonds to the amount of $400,000, and which required $60,000 and the cost of maintenance of the work until its final completion, which required $40,000 of bonds. Carter v. Drainage Commissioners, 156 N.C. 183, 72 S.E. 380. This court dissolved the injunction, which had been granted in the first case by Judge Carr, and affirmed the order of Judge O. H. Allen refusing a restraining order in the second case above cited. Our opinion is that those two cases have effectually disposed of this case upon its legal merits, and there is much less reason for allowing the proposed amendment of the judgment than there was to grant the injunction sought in the former litigation over the rights and liabilities of the parties under the final judgment.

If one of the questions now presented was not decided in the Carter Case, it was directly raised, and precisely decided, in the Gibbs Case, which was an application to enjoin the board of drainage commissioners and the sheriff from collecting the assessment made by the former in excess of the 15 cents per acre for keeping up and maintaining the drainage system in good condition, so that it would be suitable for the purposes intended to be accomplished. It is certain that the plaintiffs in that suit could not attack the final judgment of the court collaterally, for, so long as it was unreversed or left intact, it imported verity. It could be set aside for fraud or upon other equitable ground, or if the court had pronounced one judgment, and another had been substituted or recorded by mistake or inadvertence of the clerk or court, the record might be made to speak the truth, as we will see hereafter; but, as long as it remained in its integrity, what it declared could not be questioned in a collateral proceeding, but was and is conclusive, provided the court rendering the judgment had the requisite jurisdiction to do so. If it was erroneous, the remedy to correct the error was by appeal; if irregular, that is, contrary to the course and practice of the court, by motion (or direct proceeding) to set it aside; if it was obtained by fraud, collusion, and so forth, by a civil action to have it annulled; and it can be attacked collaterally if it is void and its invalidity appears on its face. No attempt has been made to set it aside upon either of the grounds mentioned, but the plaintiffs, or petitioners, seek to have it amended upon substantially the same facts and reasons as were set up in the former proceeding for an injunction (Gibbs v. Drainage Commissioners, supra).

The respondents contend that the petitioners are estopped, by our decision in that case, to proceed further in this one, or, in other words, that the doctrine of former judgment or res judicata deprives them of the right to again raise the same question which was then decided. This requires us to examine this doctrine, in view of the facts and the history of the two cases.

The principle stated generally is that the causes of action must be the same, and the former adjudication must have been on the merits, but it is not necessary that the form of the actions or proceedings must be identical. 2 Black on Judgments (2d Ed.) §§ 726 and 729. We may gather from that learned and accurate author and other sources the following as substantially the statement and application of the rule as to the bar by a former judgment: It is a well-settled rule and one which is supported by a multitude of authorities, that a party cannot, by varying the form of action, or adopting a different method of presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice litigated between the same parties or their privies. Historically this important rule is as old as the time of the Roman jurists (Dig. 44, 2, 5. See Pothier on Obl. pt. 4, c. 3, p. 3, art. 4, p. 4), and rests upon broad foundations of justice and expediency. That it has prevailed from very early times in the English law will appear from Slade's Case (4 Coke, 94b. See, also, Y. B. 12 Edw. 4, 13a), wherein--

"It was resolved that the plaintiff in this action on the case on assumpsit should not recover only damages for the special loss (if any be) which he had, but also for the whole debt so that a recovery or bar in the action would be a good bar in an action of debt brought...