McDevitt v. Chandler, 107
Decision Date | 23 March 1955 |
Docket Number | No. 107,107 |
Citation | 241 N.C. 677,86 S.E.2d 438 |
Court | North Carolina Supreme Court |
Parties | Cindy McDEVITT, Viana Ramsey, Robbie Norton, Cora Gosnell, Rolla Bullman, Jay Chandler, Joe Chandler, Inez Chandler, Mabel Chandler, Sadie Chandler, Cora Lee Cutshall, Oma B. Hilliard, Patterson Bullman, Harley Bullman, Robbie Bullman, Berlie B. Cutshall, Faye B. Thomas, William Chandler, Starling Chandler, Benjamin Chandler, Ruth C. Ray, Hubert Chandler, Marion Chandler, Rosa C. Bullman, Elmer Davis, Vian D. Dockery and Andrew Chandler, v. Dewey CHANDLER and Patterson Chandler. |
A. E. Leake and Charles E. Mashburn, Marshall, for defendants-appellants.
Calvin R. Edney, Marshall, for plaintiffs-appellees.
The court below properly ruled that the judgment in the former proceeding is no bar to the instant action. The general rule is that a judgment rendered on any ground not involving the merits of the action may not be used as a basis for the operation of the doctrine of res judicata. Steele v. Beaty, 215 N.C. 680, 2 S.E.2d 854; 30 Am.Jur., Judgments, section 208; 50 C.J.S., Judgments, § 626. See also Gaither Corporation v. Skinner, N.C., 85 S.E.2d 909. And the rule is well established that a judgment of compulsory nonsuit or dismissal not involving the merits of the case is not a bar to a subsequent action. Bradshaw v. Citizens Nat. Bank, 172 N.C. 632, 634, 90 S.E. 789, 790; Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90; 17 Am.Jur., Dismissal and Discontinuance, sections 77, 78, and 79; 50 C.J.S., Judgments, § 632. The judgment of compulsory nonsuit entered in the partition proceeding was no more than a decision that as a matter of law the petitioners had not produced evidence sufficient to sustain the cause of action alleged. It decided nothing on the merits. Hence it is no bar to the instant action to set aside the deed. Bradshaw v. Citizens Nat. Bank, supra; Steele v. Beaty, supra.
By another group of exceptions brought forward the defendants urge that the presiding Judge propounded questions and made comments of a prejudicial nature while the plaintiffs were offering their evidence. It suffices to review three exceptions in this group:
1. Exception No. 22.--The plaintiff Viana Ramsey testified on direct examination that in her opinion Aldenas Chandler 'did not have sufficient mental capacity on 3 March (1950) to know and understand what property she had, what she wanted to do with it, and the legal effect of a deed.' On redirect examination the witness was further interrogated as follows: Objection; no ruling. Objection; overruled. Motion to strike. Thereupon the court propounded the following question, to which Exception No. 22 relates:
2. Exception No. 24.--Plaintiffs' witness Nell Ramsey testified on direct examination: 'It's my opinion that she did not have sufficient mental capacity to make the deed on 3 March, 1950, and know and understand what property she had, what she wanted to do with it and the effect of making a deed. Motion by defendants to strike answer. Then followed the court's comment to which Exception No. 24 relates:
3. Exception No. 40.--This exception relates to a question propounded by the presiding Judge to plaintiff's witness Hazel Landers on direct examination. The challenged question and the answer thereto, shown below, were preceded by this line of testimony: Objection; overruled. ...
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Hendricks v. Hendricks, 693
... ... fact * * * it is a conclusion which the law draws from certain facts as a premise * * *.' McDevitt v. Chandler, 241 N.C. 677, 86 S.E.2d 438 ... In McDevitt, supra, we awarded a new ... ...
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Walker v. Story
... ... 235, 240, 151 S.E. 266; Kelly v. Kelly, 241 N.C. 146, 84 S.E.2d 809, and cases cited; McDevitt v. Chandler, 241 N.C. 677, 679, 86 S.E.2d 438, and cases cited; Pemberton v. Lewis, 243 N.C. 188, ... ...
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Hendricks v. Hendricks, 692
...an opinion on the ultimate issue involved and thereby to invade the province of the jury. In support, the opinion cited McDevitt v. Chandler, 241 N.C. 677, 86 S.E.2d 438. The witnesses in the case now being reconsidered testified that in their opinion Mr. Hendricks did not have sufficient m......