Walker v. Story

Decision Date28 February 1962
Docket NumberNo. 28,28
Citation256 N.C. 453,124 S.E.2d 113
PartiesNicholas A. WALKER v. Carl O. STORY.
CourtNorth Carolina Supreme Court

W. Y. Wilkins, Jr., Tryon, for plaintiff, appellant.

Jones & Jones, Forest City, for defendant, appellee.

BOBBITT, Justice.

The sole question presented on this appeal is whether the court erred in sustaining defendant's plea of res judicata and in dismissing the action on that ground.

The complaint in plaintiff's prior action against defendant contains substantially the same allegations set forth in the complaint in the present action; and, apart from the plea of res judicata, defendant's allegations in the two actions are substantially the same.

At the trial of the prior action, the court, on defendant's motion, entered judgment of involuntary nonsuit at the conclusion of plaintiff's evidence. On plaintiff's appeal therefrom, this judgment was affirmed on the ground the evidence offered by plaintiff was insufficient to establish his alleged title and right to possession. Walker v. Story, 253 N.C. 59, 116 S.E.2d 147.

A motion for judgment of nonsuit under G.S. § 1-183 is a demurrer to the evidence. McIntosh, North Carolina Practice and Procedure, § 565; Lewis v. Shaver, 236 N.C. 510, 512, 73 S.E.2d 320, and cases cited. It presents a question of law, namely, whether the evidence, when considered in the light most favorable to plaintiff, is sufficient to carry the case to the jury and to support a recovery. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463.

'It is the duty of the court to allow the motion in either of two events: first, when all of the evidence fails to establish a right of action on the part of plaintiff; second, when it affirmatively appears from the evidence as a matter of law that plaintiff is not entitled to recover.' Jenkins v. Fowler, 247 N.C. 111, 115, 100 S.E.2d 234, 237, and cases cited.

Where the insufficiency of plaintiff's evidence is the ground on which the court sustains a demurrer to the evidence and enters a judgment of involuntary nonsuit, the plaintiff is permitted to institute a new action and therein offer additional evidence to overcome such deficiency. If, upon the trial of the new action, 'it appears to the trial court, and is found by such court, as a fact, that the second suit is based upon substantially identical allegation and substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res adjudicata, and thus end that particular litigation.' (Our italics.) Hampton v. Rex Spinning Company, 198 N.C. 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, 90 S.E.2d 245.

These well established legal principles are fully recognized in Hayes v. Ricard, 251 N.C. 485, 491, 112 S.E.2d 123. There, in the hearing on defendants' plea of res judicata, evidence was offered by plaintiffs and by defendants; and, based on the court's findings, it was held that the judgment of involuntary nonsuit entered in the former action 'was an adjudication upon the merits of the action, for that plaintiffs' evidence showed affirmatively that defendant Ricard had a better title to the land from a common source, and that they are not entitled to recover, which was her (defendant's) defense.'

Reference is made in Hayes v. Ricard, supra, to the well established rule that '(a) judgment rendered in an action estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.' Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822. But this rule is applicable where, as held in Hayes v. Ricard, supra, the judgment in the prior action constitutes an...

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13 cases
  • Painter v. Wake County Bd. of Ed.
    • United States
    • North Carolina Supreme Court
    • 27 Agosto 1975
    ...omitted.)' (Emphasis added.) Accord, In re Trucking Co., supra; Garner v. Garner, 268 N.C. 664, 151 S.E.2d 553 (1966); Walker v. Story, 256 N.C. 453, 124 S.E.2d 113 (1962); Hayes v. Ricard, supra. In Garner, supra, 268 N.C. at 666, 151 S.E.2d at 554, quoting from Moore v. Harkins, 179 N.C. ......
  • Beam v. Almond, 194
    • United States
    • North Carolina Supreme Court
    • 11 Octubre 1967
    ...Etc., p. 162; 27 C.J.S. Dismissal and Nonsuit § 56, p. 404; 30A Am.Jur., Judgments, Section 398.' This is said in Walker v. Story, 256 N.C. 453, 124 S.E.2d 113: 'Reference is made in Hayes v. Ricard, supra, to the well established rule that '(a) judgment rendered in an action estops the par......
  • Phipps v. Robinson
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 11 Octubre 1988
    ...which they claimed included the very lands in dispute. In a similar case in North Carolina over the title to land, Walker v. Story, 256 N.C. 453, 124 S.E.2d 113 (1962), the Court held that a previous judgment of involuntary nonsuit between the same parties was not res judicata when the judg......
  • Bailey v. General Ins. Co. of America, 361
    • United States
    • North Carolina Supreme Court
    • 24 Noviembre 1965
    ...the plaintiff presents a question of law for the court. Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281; Walker v. Story, 256 N.C. 453, 124 S.E.2d 113; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d The owner's permission for the use of the insured vehicle may be expressed or, unde......
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