Hampton v. . Spinning Company

Jan 22, 1930

Versions:198 N.C. 235

151 S.E. 266

1930 N.C. LEXIS 311

BsogdbN, J.

Does a judgment of nonsuit, duly entered by a judge of tbe Superior Court, upon tbe merits of tbe cause, and after all tbe evidence has been introduced by plaintiff, bеcome determinative and conclusive in a new action brought under C. S., 415, upon tbe same complaint and upon tbe same evidence ?

Tbe plaintiff cоntends tbat C. S., 415, permits any number of suits upon tbe same cause of action, brought within one year from a judgment of nonsuit, irrespective of tbe reason or grounds of such judgment, and bases bis contention upon tbe following decisions of this Court: Meekins v. R. R., 131 N. C., 1, 42 S. E., 333; Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800; Evans v. Alridge, 133 N. C., 378, 45 S. E., 772; Nunnally v. R. R., 134 N. C., 755, 46 S. E., 5; Hood v. Telegraph Co., 135 N. C., 622, 47 S. E., 607; Tussey v. Owen, 147 N. C., 335, 61 S. E., 180; Henderson v. Eller, 147 N. C., 582, 61 S. E., 446; Lumber Co. v. Harrison, 148 N. C., 333, 62 S. E., 413; Starling v. Cotton Mills, 168 N. C., 229, 84 S. E., 388; Culbreth v. R. R., 169 N. C., 723, 86 S. E., 624.

Tbe principle was thus stated in Tussey v. Owen, supra: “Tbe plaintiff may, under tbe decisions of this Court, bring another action within one year after tbe judgment of nonsuit. ... If this were an open question tbe writer of this opinion would not give bis assent to tbe principle as thus decided, as a dismissal of tbe case upon tbe merits, *238 whether called a nonsuit or by any other name, is equivalent in law to a judgment upon a demurrer to the evidence, which by the best-considered authorities has thе same effect as a bar to another suit, as a judgment rendered upon a demurrer to the pleadings or as any other judgment upon the merits. . . . But the la.w has beеn settled the other way by actual decision upon the very question, and we now hold unanimously that another suit will lie within a year of the nonsuit.”

In Lumber Co. v. Harrison, supra, the Court said: “We decided in Hood v. Telegraph Co., 135 N. C., 622, where the same point wаs presented, that a second action will lie, although nonsuit had been entered against the plaintiff, on the merits, in a former suit for the same cause of action and upon the same state of facts.” The decisions cited as a basis for the doctrine announced in the Hood, Tussey and Harrison cases, supra, are Meekins v. R. R., supra; Prevatt v. Harrelson, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍supra; Evans v. Alridge, supra, and Nunnally v. R. R., supra. It may be interesting to observe that the Meekins case involved a voluntary non-suit. The Prevail case contains no reference to a former suit between the parties. In the case of Evans v. Alridge, supra, the action was dismissed because of failure of рroof of showing the publication of summons. The Nunnally case, supra, is a memorandum decision which does not disclose the facts. Apparently, therefore, prior to the Hood case, supra, therе was no case involving the nonsuit of a prior action upon the merits. The original record in the Hood case discloses that there was a trial of the cause upon its merits and the plaintiff was non-suited. Upon appeal to the Supreme Court the nonsuit was affirmed, 130 N. C., 743, and the petition to rehear filed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by plaintiff was dismissed. Hood v. Tel. Co., 131 N. C., 828, 43 S. E., 1003.

So, upon thе authorities cited, it is contended that a person may bring a suit, fully develop his case in open court; and, if a judgment of nonsuit is entered, he then, within twelve months, may bring identically the same action, offer identically the same evidence, and if again non-suited, may continue the same process indefinitely. In other words, if a рlaintiff should live as long as Methuselah, he could probably bring five hundred law suits upon the same complaint, offer the same evidence, and yet, there would be nо end to the litigation. The same result would follow in the event he appealed to the Supreme Court upon each judgment of nonsuit, and the Supreme Court shоuld affirm the lower court. Trull v. R. R., 151 N. C., 545, 66 S. E., 586.

The defendant, however, contends that a distinction should he drawn between cases nonsuited upon the merits, and after a full hearing, and сases nonsuited for other reasons. In support of this contention the defendant points out that even in Hood v. Tel. Co., 135 N. C., 622, this Court ruled that: “Plaintiff’s action was dismissed for lack of sufficient *239 evidence on a former trial,” etc. This statement implies that the case then under consideration was different from the former case. Again in Culbreth v. R. R., this Court said: “But the plaintiff may hereafter show, if she can, that such a claim was filed, as a nonsuit does not prevent the bringing of another action or bar the same, as we held in Tussey v. Owen. . . . Unlеss the plaintiff can supply the deficiency in the present testimony, another suit will not avail ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍her.” This language clearly implies that additional evidence would be necessary in the second suit.

Also, in Smith v. Mfg. Co., supra, the Court declared that the plaintiff would not be estopped from bringing another suit “for the merits of the case, it appeared, have not been passed upon by any conclusive ruling of the court.”

In Tuttle v. Warren, 153 N. C., 459, 69 S. E., 426, the Court declared that the plaintiff had “shown no legal right to claim under Reuben Warrеn, or to avail himself of his possession of the locus in quo. . . . In the absence of the essential proof, we must sustain the judgment of nonsuit, but this does not prevent the plaintiff from bringing another action . . . and supplying the present deficiency in the evidence, if he is able to do so.” Unquestionably, this declaration of the Court implied that the second ease could not be identical with the case then being presently decided.

Again in Prevatt v. Harrelson, supra, the Court said: “In refusing, the motion to nonsuit there was error for which, under the uniform practice of this Court, there must be a new trial. On such new trial, if the plaintiff can 'mend his lick’ by additional and sufficient evidence, well and good. He has not lost the land. If hе cannot offer such additional evidence, this, though a new trial in form, will be virtually a finality against him.” This declaration also carries upon its face the suggestion that if a new suit is brought and maintained, the “lick must be mended” and additional evidence produced. North Carolina Practice and Procedure, by McIntosh, p. 615.

Furthermore, in Grimes v. Andrews, 170 N. C., 516, 87 S. E., 341, it was deсlared: “We do not say that where it appears that the merits have been considered and passed upon, the judgment of dismissal may not be successfully pleaded as a former adjudication, but no such thing occurred here.”

The same suggestion appears in the case of Northcott v. Northcott, 175 N. C., 148, 95 S. E., 104.

The quotations from various cases where the question has been considered in this jurisdiction tend to show at least some degree of confusion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍upon the subject. Certainly, it is apparent that it was present in the minds of the judges writing the opinions that a judgment оf nonsuit *240 upon the merits and after a full hearing, stood upon a different basis from those judgments of nonsuit upon other causes and upon other grounds.

In the last analysis, the philosophy of all procedure is based upon the idea of giving each litigant a full and ample “day in court” upon the merits of his cause, and, when this has bеen done, he is not entitled to another “day in court” upon identically the same cause of action and upon the identical evidence offerеd at a former hearing.

The confusion in the law upon the matter now presented can only be eliminated by recognizing a distinction between judgments of nonsuit upon the merits of the entire controversy and after a full hearing in court, and judgments of nonsuit upon other grounds.

Of course a bill of peace might be invoked, if litigation over identically the same cause of action and upon identically the same evidence, should be so long drawn out as to threaten to invade the domain of eternity. But even if the bill of peace should be granted, it would result in a limitation of the application of C. S., 415, as applied in some of the casеs referred to — notably Lumber Co. v. Harrison, supra, and Tussey v. Owen, supra. Certainly, if such limitation can be imposed through enforcing a bill of peace, it would perhaps save time and cost to so construe C. S., 415, in the present case as to produce a uniform rule of procedure upon the question under discussion.

Other states have statutes somewhat similar tо C. S., 415, but they vary greatly in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍their scope. Furthermore, the construction thereof by the courts are not uniform. Bradshaw v. Bank, 172 N. C., 632, 37 C. J., 1082.

We therefore hold, upon the particular facts appearing in the judgment in this cause, that a plaintiff may bring an action and have it heard upon its merits, and, if a judgment of nonsuit is then entered, he may bring a new suit within one year; or he may have the cause reviewed by the Supreme Court. If the Supreme Court affirms the judgment of the trial court, he may under C. S., 415, bring a new action within the period therein specified. But, if upon the trial of the new action, upon its merits, in either event, it appears to the trial court, and is found by such court as a. fact, that thе 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 adjudicaba, and thus end that particular litigation.

Affirmed.