140 N.C. 18
N.C.
1905
Walker, J.,

after stating the case: There were several important questions discussed in this case, but the only one we need consider is that which relates to the nature and legal effect of the judgment rendered at November Term, 1900, when Judge Timberlake presided. If it was a final judgment, the plaintiffs cannot be beard upon any matter which was litigated in the action and which was necessarily determined by it. In such a case, the matter in dispute having passed in rem judicatam, the former decision is conclusive between the parties, if either attempts, by commencing another action or proceeding, to re-open the question. This doctrine is but an outgrowth of the familiar maxim, that a man shall not be twice vexed for the same cause, and the other wholesome rule of the law that it is the interest of the State that there be an end of litigation and consequently a matter *22 of public concern that solemn adjudications of the courts should not be disturbed. Broom’s Legal Maxims (8 Ed.), 330, 331. “If,” says Lord Kenyon, “an action be brought and the merits of the question be discussed between the parties and a final judgment obtained by either, the parties are concluded and cannot canvass the same question in another action, although, perhaps, some objection or argument might have been, urged upon the first trial, which would have led to a different judgment.” Grealhead v. Bromley, 7 Dunf. & East. (7 T. R.), 546. And again in another case, he says: “After a recovery by process of law there must be an end of litigation; if it were otherwise, there would be no security for any person, and great oppression might be done under the color and pretense of law.” Marriott v. Hampton, 7 Dunf. & East., 269. “Good matter must be pleaded (or brought forward) in good form, in apt time and in due order, otherwise great advantage may be lost.” Coke, 303b. If there be any one principle of law settled beyond all dispute it is this, that whensoever a cause of action, in the language of the law, transit in rem judicaiam, and the judgment thereupon remains in full force and unreversed, the original cause of action is merged and gone forever, and so it is, also, that if the plaintiff had an opportunity of recovering something in litigation formerly between him and his adversary, and but for the failure to bring it forward or to press it to a conclusion before the court, he might have recovered it in the original suit; whatever does not for that reason pass into and become a part of the adjudication of the court is forever lost to him. U. S. v. Leffler, 11 Peters, 101. Judge Willes thus states the rule: “Where the cause of action is the same and the plaintiff has had an opportunity in the former suit of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter action.” Nelson v. Couch, 15 C. B. (N. S.), 108; (s. c., 109 E. C. L. R., 108). These principles have been frilly adopted by us, as will appear in *23 the case of Tyler v. Capeheart, 125 N. C., 64, where the doctrine as to the plea of former judgment is concisely and accurately stated as follows: “The controverted point in that case (Wagon Co. v. Byrd, 119 N. C., 460), was whether a judgment was an estoppel as to the issues raised by the pleadings, and which could be determined in that action, or only as to those actually named in the judgment. .The court held the former to be the rule settled by the reason of the thing and by the authorities. It was not held that where (as in the present case) other causes of action could have been joined the judgment was final as to them also. It was only intended to say that the cause of action embraced by the pleadings was determined by a judgment thereon, whether every point of such cause of action was actually decided by verdict and judgment or not. The determination of the action was held to be a decision of all the points raised therein, those not submitted to actual issue being deemed abandoned by the losing party, who did not except.” And in Wagon Co. v. Byrd, supra, it is said: “The judgment is decisive of the point raised by the pleadings or which might properly be predicated upon them.” The doctrine does not extend to any matter which might have been brought into the litigation, or any cause of action which the plaintiff might have joined, but which in fact was neither joined nor embraced by the pleadings. Tyler v. Capeheart, supra.

Applying the foregoing and familiar principle to our case, we find that the facts bring it clearly within its scope and influence, and certainly at least so far as the matter of costs in the suit of Jones v. Bunker is concerned. It was an item in the account originally and was properly considered by the referee as it is alleged in the complaint, and denied in the answers, that it is a proper charge against the said Adelaide Bunker, and should be paid out of the rents and profits of the land. It was at first allowed by the referee and after- *24 wards omitted from bis account reported in obedience to an order requiring a new account to be taken and stated. To this omission plaintiffs excepted, and if it be conceded that the exception was directed only to the failure of the referee to charge the former allowance upon the rents and profits, and this seems to be so, it nevertheless appears that the plaintiffs permitted what is in form and substance a final judgment to be rendered, which did not in terms include this allowance, but provided on the contrary that plaintiffs should only recover a certain sum and the costs of the action, which necessarily excluded from the judgment the recovery of the costs paid in the suit of Jones v. Bunker. That this was a final judgment there can be no doubt. It possessed all of the elements and characteristics of such a judgment. It decided the case upon its merits, without any reservation for other and future directions of the court, so that it was not necessary to bring the case again before the court; and when it was pronounced, the cause was at an end and no further bearing could be bad. Flemming v. Roberts, 84 N. C., 532; McLaurin v. McLaurin, 106 N. C., 331. All discussion of questions involved in that suit is shut out by the judgment. This ruling applies with equal force, we think, to the other branch of the order which required the referee to take an account of the rents and profits received since March, 1897. By the very terms of the judgment, the account was closed to the day of its rendition and no other or further accounting could be ordered in respect to matters not included in that suit. Such relief must be sought in a new and independent action.

The judgment was rendered at November Term, 1900. No exception was entered and no appeal taken, but the amount recovered and the costs were paid. When this was all done by and with the acquiescence of the plaintiffs, the vitality of that suit and of the judgment therein was fully spent and the latter could not be re-opened and the suit revived by any sort of proceeding known to the law.

*25 The court erred in making the order and the case is remanded with directions to set it aside and to deny plaintiffs’ motion.

Eeversed.