Southern Distributing Co. v. Carraway
144 S.E. 535
N.C.
1928
Check Treatment
Stacy, C. J.,

after stating the case: Without considering all the grounds upon which the judgment is based, as it is unnecessary to do so, we think the defendants’ plea of res judicata, or estoppel, is valid. A claim made or position taken in a former action or judicial proceeding estops the party making such claim to take a conflicting position or to make an inconsistent claim in a subsequent action or judicial proceeding to the prejudice of his adversary, where the parties are the same and the same questions are involved. 16 Cyc., 799. Defining estoppel by judgment, Pearson, J., in Armfield v. Moore, 44 N. C., 157, says: “The meaning of which is, that when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed. ... In other words, his mouth is shut, and he shall not say that is not true which he had before in a solemn manner asserted to be true.”

*60 In tbe. former proceeding it was alleged by the plaintiff therein, also plaintiff herein, admitted by the defendants therein, also defendants herein, and found as a fact by the court, to which no exception was taken, that the particular property here in question was held by Henry T. Carraway and wife, Willie G-. Carraway, as tenants by the entirety, under and by virtue of the deed now sought to be set aside, and, in consequence of this fact, it was declared that the said tract of land was not liable to be taken under an execution to satisfy plaintiff’s claim, as the defendants, husband and wife, held the property as tenants by the entirety, and plaintiff’s judgment was rendered against them individually, and not jointly and severally. Distributing Co. v. Carraway, 189 N. C., 420, 127 S. E., 427.

The parties, the subject-matter, and the object sought are the same in both proceedings; and it may be stated as a general rule that a party is not permitted to take a position in a subsequent judicial proceeding which conflicts with a position taken by him in a former judicial proceeding, when the later position disadvantages the adverse party. Hardison v. Everett, 192 N. C., 371, 135 S. E., 288; Barcliff v. R. R., 176 N. C., 39, 96 S. E., 644; In re Will of Lloyd, 161 N. C., 557, 77 S. E., 955. Such was the holding in Edwards v. Baker, 99 N. C., 258, 6 S. E., 255, accurately stated in the headnote as follows: “A judicial determination of the issues in one action is a bar to a subsequent one between the same parties having the same 'object in view, although the form of the latter and the precise relief sought therein is different from the former.”

And further, it is well established by a long line of decisions that when a court of competent jurisdiction renders judgment in a cause properly before it, such judgment 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. Fe rebee v. Sawyer, 167 N. C., 199, 83 S. E., 17; In re Lloyd’s Will, 161 N. C., 557, 77 S. E., 955; Tuttle v. Harrill, 85 N. C., 456.

The rule is stated in Coltrane v. Laughlin, 157 N. C., 282, 72 S. E., 961, as follows: “It is well recognized here and elsewhere that when a court having jurisdiction of the cause and the parties renders judgment therein, it estops the parties and their privies as to all issuable matter contained in the pleadings, and though not issuable in the technical sense, it concludes, among other things, as to all matters within the scope of the pleadings which are material and relevant and were in fact investigated and determined on the hearing,” citing the following authorities for the position: Gilliam v. Edmonson, 154 N. C., 127; Tyler v. Capehart, 125 N. C., 64; Tuttle v. Harrell, 85 N. C., 456; Fayer- *61 weather v. Ritch, 195 U. S., 277; Aurora City v. West, 74 U. S., 82, 103; Chamberlain v. Gaillard, 26 Ala., 504; 23 Cyc., p. 1502-4-6.

Applying these principles to the facts of the instant case, we tbink the plaintiff’s action was properly dismissed.

Affirmed.

Pee Oueiam.

The plaintiff’s motion to make new parties so as to change the character of the action, lodged for the first time in the Supreme Court, must be denied.