224 S.E.2d 612 | N.C. | 1976
Marion HENDERSON
v.
Lucille MATTHEWS.
Berthland ROGERS
v.
Marion HENDERSON and Lucille Matthews.
Margie Ruth NEWKIRK
v.
Marion HENDERSON and Lucille Matthews.
Katie Mae Matthews LANIER
v.
Marion HENDERSON and Lucille Matthews.
Supreme Court of North Carolina.
*614 Crossley & Johnson by Robert White Johnson, Wilmington, for petitioner Henderson.
Johnson & Johnson by Rivers D. Johnson, Jr., Warsau, for respondent Matthews.
E. C. Thompson, III, Warsau, for respondents, Rogers, Newkirk and Lanier.
EXUM, Justice.
We allowed Henderson's petition for further review to consider whether the Court of Appeals erred in ordering new trials of the passengers' claims against defendant Henderson upon an appeal taken only by defendant Matthews. In our opinion it did.
Appellate courts do not generally vindicate the rights of parties aggrieved at trial who could appeal but choose not to do so. Quenby Corp. v. Connor Co., 272 N.C. 208, 158 S.E.2d 18 (1967); cf. Van Dyke v. Insurance Co., 173 N.C. 700, 91 S.E. 600 (1917); but see Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922 (1956) (exercise of supervisory powers of Supreme Court which benefited non-appealing party in an in rem action). The Court in Quenby said, 272 N.C. at 211, 158 S.E.2d at 20, "Even though it would be desirable to make a uniform ruling as to all five defendants, who occupy similar legal positions, we can rule only as to those who properly present their appeals." Parties aggrieved at trial who could but choose not to appeal are bound by the actions of the trial court even if these actions are later determined to be erroneous upon the appeal of another party. Mayo v. Casualty Co., 282 N.C. 346, 192 S.E.2d 828 (1972); Conger v. Insurance Co., 266 N.C. 496, 146 S.E.2d 462 (1966); cf. Gower v. Insurance Co., 281 N.C. 577, 189 S.E.2d 165 (1972); Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366 (1942).
Both Mayo and Conger were actions against two defendants in the alternative. Theories of liability against defendants, respectively, in each case were mutually exclusive. In each case the trial court found in plaintiff's favor against only one of the defendants. Only the losing defendant in each case appealed. In neither case did the plaintiff appeal.
In Mayo the Court of Appeals awarded the appealing defendant a new trial saying, "Plaintiff did not appeal. The judgment is therefore a final adjudication as between plaintiff and [the successful defendant below]." 15 N.C.App. 309 at 311, 190 S.E.2d 398 at 399. Upon further review of this case, this Court held that plaintiff could not, as a matter of law, recover against the appealing defendant and that rather than order a new trial, the Court of Appeals should have reversed the judgment against this defendant. This Court said, further, "In this respect only the judgment of the Court of Appeals is in error." 282 N.C. at 356, 192 S.E.2d at 834.
In Conger this Court reversed a judgment against the appealing defendant saying, "The judgment does not disclose the ground on which the [trial] court adjudged that plaintiff `have and recover nothing' of [the successful defendant below]. Plaintiff did not appeal. Hence, the judgment is a final adjudication as between plaintiff and [the successful defendant below]." 266 N.C. at 499, 146 S.E.2d at 464-465.
The upshot of the decisions on appeal in both Mayo and Conger was that plaintiff in each case by failing to appeal an adverse judgment as to one of the defendants, lost all right to proceed further against that defendant when a favorable judgment against the appealing defendant was reversed. This was true in Mayo even though it was determined finally on appeal in this Court that plaintiff should have been awarded a recovery against the successful defendant at trial.
The passenger plaintiffs, by failing to appeal, are bound by the judgments *615 against them and in favor of defendant Henderson although there might have been error in the trial leading to these judgments. While Matthews may have desired that the passenger plaintiffs recover against Henderson, Matthews was not aggrieved by their failure to do so but only by their recovery against her. Under the rationale in Mayo and Conger Matthews' appeal can challenge only the recovery against her. Matthews' appeal "did not bring before the Court of Appeals, and so does not present to us, so much of the judgment of the superior court as adjudicated the right of the [passenger] plaintiff[s] to recover from" Henderson. Mayo v. Casualty Co., supra 282 N.C. at 356, 192 S.E.2d at 834.
The Court of Appeals was without authority on Matthews' appeal to order new trials of the passengers' claims against Henderson. The Court of Appeals could at most have awarded, upon the errors assigned, new trials in Henderson's and the passengers' claims against Matthews.
The decision of the Court of Appeals is therefore vacated and this matter remanded to it for disposition in accordance with this opinion.
VACATED AND REMANDED.
