268 N.C. 134 | N.C. | 1966
On plaintiff’s appeal in the prior action the Supreme Court affirmed the judgment of compulsory nonsuit in an opinion filed on 24 February 1965 on the ground of insufficiency of plaintiff’s evidence. The record shows that the instant action was commenced by the issuance of summons on 21 February 1966, which is within one year after the judgment of compulsory nonsuit was affirmed in the Supreme Court. G.S. 1-25.
The sole question presented on this appeal is whether the trial
It is settled law in this jurisdiction that when a prior action is nonsuited on the ground of insufficiency of plaintiff’s evidence, a plea of res judicata on the ground of a prior judgment of compulsory nonsuit can be sustained when, and only when, the allegations and evidence in the two actions are substantially the same. A plea of res judicata ordinarily cannot be determined on the pleadings in the two actions, the judgment of compulsory nonsuit entered in the prior action on the ground of insufficiency of the evidence, the record of evidence in the prior action on appeal, and the decision of the Supreme Court in respect to the prior action. A plea of res judi-cata can be determined only after the evidence in the second action is presented. Walker v. Story, 256 N.C. 453, 124 S.E. 2d 113; Moore v. Carroll, 253 N.C. 220, 116 S.E. 2d 459; Hayes v. Ricard, 251 N.C. 485, 112 S.E. 2d 123; Pemberton v. Lewis, 243 N.C. 188, 90 S.E. 2d 245; Craver v. Spaugh, 227 N.C. 129, 41 S.E. 2d 82; Brown v. Johnson, 207 N.C. 807, 178 S.E. 570; Batson v. Laundry, 206 N.C. 371, 174 S.E. 90; Hampton v. Spinning Co., 198 N.C. 235, 151 S.E. 266.
In considering the question as to whether the judgment of compulsory nonsuit is res judicata as to the second action, “the evidence to be considered on such motion may not be limited to the evidence that was adduced in the former trial, but contemplates a consideration of all the evidence adduced in support of the allegations of the respective complaints. It is only by a consideration of all such evidence that the court may determine whether or not the evidence in both trials was substantially the same.” Pemberton v. Lewis, supra.
This is said in 3 Strong’s N. C. Index, Judgments, § 38:
“In order to sustain a plea of estoppel by judgment in an action instituted after judgment of nonsuit the court must find that the allegations and evidence in the second action are substantially identical with the first. Therefore, the plea may not be properly determined prior to the introduction of the evidence. The court should not allow the plea without first hearing the evidence and finding the facts as to the identity of the allegations and evidence. But when the court denies the plea, it is discretionary with the court whether to find the facts.”
Wilson v. Hoyle, 263 N.C. 194, 139 S.E. 2d 206, relied on by defendants, is factually distinguishable, in that it is stated in the opinion, “The stipulations referred to in the judgment establish the identity of parties and of subject matter in the two actions.”
The trial court committed error in sustaining defendants’ pleas of res judicata and estoppel and in dismissing plaintiff’s action.
. . [0]rdinarily, where there is a demurrer to the evidence and the court sustains the demurrer and enters a judgment of involuntary nonsuit, the plaintiff is permitted to bring another action in order that he may ‘mend his licks,’ if he can.” Kelly v. Kelly, 241 N.C. 146, 84 S.E. 2d 809. The defendants’ pleas of estoppel and res judicata, however, remain in the case to be passed on after all the evidence has been presented in the instant case. The judgment of the superior court is
Reversed.
