SHIRLEY T. TIDWELL v. DAVID BOOKER
No. 37
IN THE SUPREME COURT
(Filed 17 June 1976)
[290 N.C. 98]
The judgment in a 1963 criminal action against defendant for failure to support his illegitimate child is deemed valid since defendant did not appeal from that judgment; even if defendant was an indigent in 1963 and counsel was not appointed to represent him, the judgment is still valid since the offense of which defendant was convicted is of such a nature that appointment of counsel for, or intelligent waiver thereof by, an indigent defendant is not required by the Sixth and Fourteenth Amendments to the U. S. Constitution.
2. Bastards § 8; Judgments § 37; Criminal Law § 26— wilful failure to support illegitimate child — subsequent prosecution — no double jeopardy — finding of paternity — res judicata in subsequent prosecution
The criminal offense of wilful nonsupport of an illegitimate child by a parent of the child may be repeated and, if it is, prosecution for the subsequent offense is not barred by the prosecution for the former offense on the theory of double jeopardy; however, upon such subsequent prosecution of the alleged father, the question of paternity, necessarily determined against him in the former criminal action, need not be re-litigated, that question being res judicata.
3. Evidence § 22— conviction in criminal case — subsequent action for damages — evidence of conviction inadmissible
It is the general rule in this jurisdiction that, in a civil action for damages, evidence of the defendant‘s conviction in a criminal prosecution for the very acts which constitute the basis of the alleged liability in the civil action is not admissible, the defendant having entered a plea of “not guilty” in the criminal action.
4. Bastards § 1— wilful failure to support illegitimate child — paternity issue incidental
The question of paternity is incidental to the prosecution for the crime of nonsupport, but it is incidental only in the sense that proof of paternity is not proof of wilful nonsupport of the child; however, an affirmative answer to the question of paternity is an indispensable prerequisite to the defendant‘s conviction on the criminal charge.
5. Bastards § 3— wilful failure to support illegitimate child — State as party in criminal prosecution
In no sense is the State a mere nominal party in a criminal prosecution under
Since the parties in a prior criminal prosecution for wilful failure to support an illegitimate child and the parties in this civil action to have defendant declared the father of plaintiff‘s illegitimate child and to require child support of defendant are not the same, and the State and the plaintiff in this civil action are not in privity, the defendant is not estopped in the present action to deny paternity of plaintiff‘s illegitimate child, though the question of paternity was answered in the affirmative in the prior criminal prosecution.
7. Parent and Child § 7— illegitimate child — duty of mother and father to support upon finding of paternity
If and when it is properly determined in this civil action for child support that defendant is the father of plaintiff‘s illegitimate child, the rights, duties and obligations of the plaintiff and the defendant with regard to the support of the child will be the same, and may be enforced in the same manner, as if she were the legitimate child of the plaintiff and the defendant.
8. Parent and Child § 7— child support — father primarily responsible — mother secondarily responsible
9. Principal and Surety § 11— default of party primarily liable for obligation — action for reimbursement by party secondarily liable proper
A party secondarily liable for the payment of an obligation, who is compelled by the default of the party primarily liable therefor to pay it, may, by action brought within the period of the applicable statute of limitations, compel the party primarily liable to reimburse him for such expenditure.
10. Bastards § 10— illegitimate child — sums for support expended by mother — action for reimbursement — three year statute of limitations
An action to enforce the liability of the father to reimburse the mother of an illegitimate child for expenditures reasonably incurred in the support of such child is barred after three years, but each such expenditure by the mother creates in her a new right to reimbursement; therefore, upon a proper determination by the district court that the defendant is the father of plaintiff‘s illegitimate child, the court may enter an order requiring defendant to reimburse plaintiff for reasonably necessary expenditures made by her for the support of the child on and after October 9, 1971, plaintiff having instituted this action on October 9, 1974.
11. Attorney and Client § 7; Bastards § 10— action for child support — when attorney‘s fees recoverable
Justices HUSKINS and MOORE join in the dissenting opinion.
ON certiorari to the Court of Appeals to review its decision, reported in 27 N.C. App. 435, 219 S.E. 2d 648, affirming judgments of the District Court of MECKLENBURG in favor of the plaintiff.
On 18 December 1963, Shirley Tidwell swore out a warrant in the Domestic Relations Court of Mecklenburg County charging David Booker with the criminal offense of failing and refusing to provide adequate support for his illegitimate child, Clauda (sic) Ann, born 17 November 1963 to Shirley Tidwell, then unmarried. In that proceeding Judge Gatling of the Domestic Relations and Juvenile Court entered judgment 20 December 1963, reciting:
“The Defendant submitted a plea of not guilty.
“The Court finds as a fact, and the defendant admits, that he is the father of a child, Clauda (sic) Ann, born out of wedlock to the prosecuting witness, November 17, 1963.
“The Court entered a verdict of GUILTY.”
The judgment was that the defendant be confined for a period of six months under the supervision of the State Prison Department, but the sentence was suspended, with the consent of the defendant, upon condition that he pay into the court each week “8.00 for the support of his child born out of wedlock, pending further orders.”
From that judgment no appeal was taken. Pursuant thereto the defendant, David Booker, paid into the court eleven payments over a period of two years, totaling $139.00.
In 9 October 1974, the plaintiff, Shirley Tidwell, instituted the present action in the District Court of Mecklenburg County, filing her complaint consisting of two claims for relief. First, the complaint alleges: The defendant, David Booker, is the biological father of the minor child, Claudia Ann Tidwell, the plaintiff being the mother; the defendant previously admitted paternity in open court and the Domestic Relations and Juvenile Court found as a fact that he is the father of the child in the above mentioned judgment; the defendant has provided “some support and maintenance” for the benefit of the child within
Upon the first claim, the plaintiff prayed: “That Defendant be declared the biological father of Claudia Ann Tidwell pursuant to the provisions of
On 9 October 1974, the same day the complaint was filed, Robinson, D.J., entered an order reciting that “the plaintiff has instituted an action pursuant to the provisions of Chapter 50 of the General Statutes of North Carolina,” and setting the matter for hearing at a non-jury session of the District Court
On 23 December 1974, the defendant filed answer in which he demanded a jury trial and alleged: Failure of the complaint to state a cause of action upon which relief can be granted; both Claim I and Claim II in the complaint are barred by the three year statute of limitations; a denial of paternity; a denial of any admission by him in open court (in the 1963 proceeding) that he is the father; an assertion that he was not represented in the 1963 proceeding by counsel and, being then an indigent, was entitled to have counsel, which right he did not intelligently waive; that he was not advised in that proceeding of his right to appeal from the said judgment and, therefore, the 1963 proceeding “cannot properly and lawfully be used against him in this subsequent civil proceeding“; and “the Plaintiff or the said minor child have (sic) no claim against him in this action for any amounts which were due or might have been due pursuant to any terms or conditions or any matters in said criminal action in this particular action“; a denial of his present ability to provide any support for the said child, he having a wife and family dependent upon him for their support and a limited income from his employment.
On 3 January 1975, the defendant filed a motion reciting that this is an action pursuant to
The matter came on to be heard before Robinson, D.J., without a jury. He entered an order, filed 27 January 1975, reciting that such hearing was limited to determination of the matters of “continuing periodic support for said child and an award of counsel fees in connection therewith,” the matter of the alleged lump sum for past arrearages to be heard by the court at a later date. The order of Judge Robinson contained detailed
“8. Defendant was not represented by counsel at said trial on December 20, 1963; and, while Defendant has made conclusory allegations and statements that he was indigent at the time of said trial, Defendant has not alleged any facts or offered any evidence which would tend to support a conclusion that he was indigent at that time; and, Plaintiff has offered evidence that Defendant was not indigent at that time.
“9. Defendant has not alleged any facts or offered any evidence in support of his conclusory statements upon which this Court can determine whether he was effectively denied any right to counsel.
* * *
“12. As a result of his conviction on December 20, 1963 for violation of
NCGS § 49-2 , Defendant was not imprisoned; and, the suspended sentence imposed by the Court in its judgment on said date cannot now be revoked and an active sentence imposed; and, Defendant will never have to serve any portion of the sentence which was suspended by said Court on December 20, 1963.* * *
“17. The factual issue of Defendant‘s paternity of said minor child, Claudia Ann Tidwell, was finally adjudicated in [the 1963 proceeding].
“18. Defendant is the biological father of said child.
“19. Said minor child has been and is now residing with Plaintiff.
“20. Defendant has provided some support and maintenance for said minor child within three years immediately prior to the commencement of this action.
“21. At the time of the institution of this action, Defendant was not providing any support or maintenance to or for said minor child; nor is he doing so now.
* * *
“The reasonable expenses for the support and maintenance of said minor child amount to $52.00 per week, at the present time.”
* * *
“34. Defendant, as father of said minor child, is primarily liable for the support and maintenance of said minor child.
“35. Considering the estates, earnings, and conditions of the parties and the accustomed standard of living and needs of said minor child and the parties, the sum of $33 per week is a fair and reasonable amount for Defendant to pay to partially meet the needs of said minor child for her health, education, maintenance and support.
“36. Defendant is fully capable of paying and is able to pay the sum of $33 per week for the partial support and maintenance of said minor child.”
Robinson, D.J., thereupon ordered that the defendant pay $33.00 per week for the partial support of the child and pay $350 as a fee to the plaintiff‘s attorney for his representation of the plaintiff and the child in this action.
From this order the defendant appealed to the Court of Appeals. Robinson, D.J., made appeal entries allowing the defendant 45 days in which to prepare and serve his statement of the case on appeal and fixing a supersedeas bond and an appeal bond.
On 14 February 1975, the plaintiff moved to dismiss the appeal “for the reason that said order is not a final judgment or other order from which Defendant has a right to appeal.”
On 18 February 1975, the plaintiff moved for summary judgment on her claim for a lump sum award of $4,169 for support furnished by her to the child in the past because of the defendant‘s refusal to support the child, and for a reasonable sum to her attorney as a fee for representing her in connection with that claim. At the same time, she again moved to dismiss the defendant‘s appeal from the order entered by Robinson, D.J., on 27 January 1975, the ground for this motion to dismiss being that the defendant had failed to serve on the plaintiff a statement of the evidence and proceedings from available sources as he was required to do by law, no stenographic record of the hearing before Robinson, D.J., having been taken.
On 27 March 1975, the plaintiff filed a third motion to dismiss the defendant‘s said appeal and therein prayed for the
On 16 April 1975, Hicks, D.J., heard the matter upon the above motions and entered an order dismissing the appeal of the defendant from the above mentioned order by Robinson, D.J., directing the defendant to pay $750 to the plaintiff‘s attorney for his representation of the plaintiff and the child in opposition to the said appeal and adjudging that the plaintiff recover from the defendant $4,169, together with interest and costs of the action. This order by Hicks, D.J., contained numerous findings of fact, included the following:
“3. Said Order of the Honorable William G. Robinson adjudicated only one of Plaintiff‘s two claims, and said Order did not contain any finding or determination which made said Order immediately appealable under Rule 54(b) of the North Carolina Rules of Civil Procedure.
* * *
“6. Defendant did not prepare, file, and serve upon Plaintiff or her counsel within ten days of the filing of said Appeal Entries And Exceptions a statement of the evidence taken and proceedings had at the hearing held in this action on January 21, 1975.
* * *
“8. * * * there has never been filed any complete statement of Evidence Taken and Proceedings Had at said hearing on January 21, 1975.
* * *
“11. No extension of time within which to serve Defendant‘s Statement of Case on Appeal has been sought or obtained by Defendant or any of his counsel.
* * *
“20. There is no genuine issue as to the fact that since the entry of said Judgment of December 20, 1963 [the above judgment of Gatling, J., imposing a suspended sentence for nonsupport of the child], Defendant has been under a duty to provide for the support and maintenance of said minor child.”
* * *
“22. * * * Defendant has provided some clothing or money to or for the benefit of said minor child within three years next preceding the commencement of this action.
* * *
“23. * * * Defendant has failed and refused to provide for the support and maintenance of said minor child.
“24. There is no genuine issue as to the facts that since the entry of said Judgment on December 20, 1963, Plaintiff has provided the support and maintenance of said minor child, and that she has expended $4,169 of her own money for the support and maintenance of said minor child on account of Defendant‘s refusal to so provide.”
Hicks, D.J., concluded in his order that plaintiff‘s counsel is not entitled to any award for his fee for representation of the plaintiff in connection with her claim for the lump sum reimbursement of her expenditures for the support of the child, and no fee for those services was ordered to be paid by the defendant.
Hicks & Harris by Tate K. Sterrett for plaintiff.
Reginald L. Yates for defendant.
LAKE, Justice.
In 1963, upon a warrant valid in form, in a court of competent jurisdiction, the defendant was charged with violation
The 1963 judgment recites, parenthetically, that the defendant admitted he was the child‘s father, which statement the defendant now asserts was incorrect. The judgment does not rest upon this statement but upon the court‘s finding of his paternity as a fact despite his plea of not guilty. Neither the judgment nor the record presently before us gives any indication as to the nature or evidence of the alleged admission, whether it was in the course of testimony by the defendant or otherwise. Such admission is not inconsistent with his plea of “not guilty,” for the criminal offense is not committed by the begetting but by the wilful nonsupport of the child. State v. Ellis, 262 N.C. 446, 137 S.E. 2d 840 (1964).
[1] From the 1963 judgment the defendant did not appeal. On the contrary, the judgment recites that he consented to the terms upon which sentence was suspended. The defendant now asserts that this judgment was and is invalid because he was then an indigent and counsel was not appointed to represent him. Nothing in the record before us supports his contention that he was an indigent in 1963. In State v. Green, 277 N.C. 188, 176 S.E. 2d 756 (1970), this Court held that the offense of which this defendant was so convicted in 1963 is of such a nature that appointment of counsel for, or intelligent waiver thereof by, an indigent defendant is not required by the Sixth and Fourteenth Amendments to the United States Constitution. The defendant having failed to appeal therefrom, the judgment in the 1963 criminal action is deemed valid.
[2] The criminal offense of wilful nonsupport of an illegitimate child by a parent of the child may be repeated and, if it is, prosecution for the subsequent offense is not barred by the prosecution for the former offense on the theory of double jeopardy. State v. Robinson, 236 N.C. 408, 72 S.E. 2d 857 (1952). Upon such subsequent prosecution of the alleged father, the question of paternity, necessarily determined against him in the former criminal action, need not be re-litigated, that question being res judicata. State v. Ellis, supra. In the two criminal actions there is identity of parties and identity of this issue. It is im-
[3] It is, unquestionably, the general rule in this jurisdiction that, in a civil action for damages, evidence of the defendant‘s conviction in a criminal prosecution for the very acts which constitute the basis of the alleged liability in the civil action is not admissible, the defendant having entered a plea of “not guilty” in the criminal action. Beanblossom v. Thomas, 266 N.C. 181, 146 S.E. 2d 36 (1966). As Justice Parker, later Chief Justice, said in Trust Co. v. Pollard, 256 N.C. 77, 123 S.E. 2d 104 (1961): “The general and traditional rule supported by a great majority of the jurisdictions is that, in the absence of a statutory provision to the contrary, evidence of a conviction and of a judgment therein, or of an acquittal, rendered in a criminal prosecution, is not admissible in evidence in a purely civil action to establish the truth of the facts on which the verdict of guilty or of acquittal was rendered, or when there is a verdict of acquittal to constitute a bar to a subsequent civil action based on the same facts. While the same facts may be involved in two cases, one civil and the other criminal, the parties are necessarily different, for, whereas one action is prosecuted by an individual, the other is maintained by the State.”
In virtually all, if not all, cases in which a civil action for damages grows out of criminal conduct of the defendant the purpose of the criminal statute is to discourage conduct likely to cause injury to the class of persons to which the plaintiff in the civil action belongs. For example, the statutes making speeding, driving on the wrong side of the road and driving while intoxicated (see Beanblossom v. Thomas, supra) criminal offenses are designed to protect other users of the highway from injury to their persons and damage to their property. Usually, the injured person, if he or she survives, is the principal witness for the State in a criminal prosecution. The present case, the Taylor case and the Beanblossom case cannot be distinguished on these grounds. Furthermore, in the prosecution of a parent for nonsupport of an illegitimate child, the State is acting, at least in part, for the protection of its own financial interest since it thereby seeks to prevent the child from becoming a public charge.
Technically, Beanblossom v. Thomas, supra, and Trust Co. v. Pollard, supra, did not involve the question of the conclusiveness, in a subsequent civil action, of the defendant‘s conviction in a prior criminal proceeding of the precise conduct which is the basis for the civil suit. Those cases involved the admissibility of evidence of such previous conviction, the basis of the objection to such evidence being the hearsay rule and the opinion rule, the former verdict being a statement of the first jury‘s opinion. However, a plea of res judicata must be supported by the introduction of evidence of the former judgment and it is hardly conceivable that the Beanblossom and Pollard cases can be distinguished from the present case on this ground.
In Trust Co. v. Pollard, supra, this Court cited Briggs v. Briggs, 215 N.C. 78, 1 S.E. 2d 118 (1939), as holding that a judgment in a criminal action for abandonment is not res judicata as to the wife‘s right to counsel fees and support, pending litigation of a suit for divorce thereafter instituted by the husband, the defendant in the criminal action. An examination of the Briggs case, however, indicates that the criminal proceeding, relied upon by the husband as a bar to the wife‘s right to counsel fees pendente lite in the divorce action, was determined in his
In Allen v. Hunnicutt, 230 N.C. 49, 52 S.E. 2d 18 (1949), this Court held that, as of that time (
In the present case, the Court of Appeals said:
“[T]he plaintiff wife, though not technically in control of a 1963 prosecution, was essential to its success as the prosecuting witness and in fact stood in the position of obvious beneficiary of its successful culmination. * * * In view of the unique nature of the two causes of action and the unique interrelationship of the State in the affairs of an illegitimate child and the mother of that child, the requisite privity of parties existed for purposes of mutuality and collateral estoppel. * * *
“Notwithstanding Beanblossom, we hold that the rules articulated in Ellis and Clouch are applicable to subsequent civil actions for willful failure to support a minor child where paternity was fully addressed in the prior criminal prosecution for willful failure to support. This holding is necessarily limited to the peculiar hybrid nature of the particular cause of action raised in these cases.”
In King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973), four members of the same family were killed or injured in an automobile collision. The two injured survivors, the only surviving members of the family, sued and recovered dam-
“Under a companion principle of res judicata, collateral estoppel by judgment, parties and parties in privity with them—even in unrelated causes of action—are precluded from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination. * * *
“To determine whether collateral estoppel applies in the present cases, it must first be decided whether the parties in these suits and those in the former Federal litigation are the same, or stand in privity to the parties in the former litigation. * * *
“‘In an action to recover damages for wrongful death the real party in interest is the beneficiary under the statute for whom recovery is sought, and not the administrator.’ * * * Therefore, we conclude that the requirement of identity of parties is met.”
Thus, the determining factor in King v. Grindstaff, supra, was that the administrator, the plaintiff in the wrongful death action, was a nominal party only and had no beneficial interest in the action, the entire beneficial interest being in the survivors who were the plaintiffs in the former litigation. Thus, for all practical purposes, the parties to the two actions were the same.
“It is * * * well settled that the privity, which will create an estoppel by judgment against one not a party to the former action, denotes a mutual or successive relationship to the same right.” Kaylor v. Gallimore, 269 N.C. 405, 408, 152 S.E. 2d 518 (1966). Accord: Masters v. Dunstan, 256 N.C. 520, 124 S.E. 2d 574 (1962); Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E. 2d 167 (1953); Leary v. Land Bank, 215 N.C. 501, 2 S.E. 2d 570 (1939); Rabil v. Farris, 213 N.C. 414, 196 S.E. 321 (1938).
In Crosland-Cullen Co. v. Crosland, supra, the plaintiff first sued an insurance company to recover from it the proceeds of a policy of which the plaintiff was beneficiary, contending, against the defense of payment of the policy, that the insurance company had paid to one who claimed under a void assignment of the policy. In that action, judgment was rendered for the insurance company, i.e., that the assignment was valid and the payment to the assignee proper. Thereafter, the plaintiff sued the assignee on the ground that the assignee had received from the insurance company money which should have been paid to the plaintiff beneficiary. This Court held the second action was barred by the former judgment, saying this was an exception to the general rule requiring identity of parties and mutuality in determining a plea of res judicata. The Court, speaking through Justice Rodman, said the plaintiff having failed to establish any wrong done by the one primarily liable (the insurance company) could not thereafter hold the recipient of the money liable on the ground of money received which should have been paid to the plaintiff. In such case there would be the required privity between the successive defendants.
[5] In no sense is the State a mere nominal party in a criminal prosecution under
In Shaw v. Eaves, 262 N.C. 656, 138 S.E. 2d 520 (1964), the Court held that when an additional defendant is joined by an original defendant for contribution in an action ex delicto, the plaintiff and the additional defendant are not adversaries in law, and a judgment holding the original defendant entitled to contribution against the additional defendant does not make the question of the additional defendant‘s negligence res judicata in a subsequent action between him and the original plaintiff. The Court said, “Estoppel by judgment must be mutual,” and “An estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it had it gone against him.”
In the present case, the plaintiff mother swore out the warrant which initiated the criminal prosecution against the defendant and, presumably, was a witness for the State at the trial of that action. She was not, however, in control of the prosecution. The State was represented by its prosecuting attorney, not an attorney employed by the mother. She had no control of his handling of the trial. Had the criminal proceeding resulted in a finding that the defendant was not the father of Claudia Ann, the mother would not be barred thereby from bringing the present action. As Justice Higgins observed in his dissent in Taylor v. Taylor, supra, Estoppels by judgment run against parties, not witnesses. Accord: Kaylor v. Gallimore, supra.
[6] Thus, we conclude that, for the reason that the parties to the criminal and civil proceedings are not the same and the State and this plaintiff are not in privity, the defendant is not estopped in the present action to deny paternity of Claudia Ann. Until this question is determined in this civil action, the defendant may not properly be ordered herein to make payments for the future support of the child, or to reimburse the mother for expenses heretofore incurred by her in support of the child, or to pay an attorney‘s fee to the attorney for the mother. This action must, therefore, be remanded to the district court for determination by it of the question of paternity and, if that be determined adversely to the defendant, for the entry of such orders as may be appropriate concerning these other matters.
[7] If and when it is properly determined in this action that the defendant is the father of Claudia Ann, the “rights, duties, and obligations” of the plaintiff and the defendant with regard to the support of the child will be the same, and may be enforced in the same manner, as if she were the legitimate child of the plaintiff and the defendant.
[8]
“(b) In the absence of pleading and proof that circumstances of the case otherwise warrant, the father, the mother * * * shall be liable, in that order, for the support of a minor child. * * * ” (Emphasis added.)
Thus, the statute imposes upon the father the primary duty to support the child, the mother‘s obligation being secondary. It is so declared, with reference to legitimate children in Wells v. Wells, 227 N.C. 614, 44 S.E. 2d 31 (1947), by Justice Winborne, later Chief Justice, speaking for this Court.
Thus, should it be properly determined, upon the retrial of this action, that the defendant is the father of Claudia Ann, the court may order the defendant to pay “to the person having custody of the child or any other proper person, agency, organization or institution, or to the court, for the benefit of such child” (
[9, 10] A party secondarily liable for the payment of an obligation, who is compelled by the default of the party primarily liable therefor to pay it, may, by action brought within the period of the applicable statute of limitations, compel the party primarily liable to reimburse him for such expenditure. Insurance Co. v. Gibbs, 260 N.C. 681, 133 S.E. 2d 669 (1963); Saieed v. Abeyounis, 217 N.C. 644, 9 S.E. 2d 399 (1940); Trust Co. v. York, 199 N.C. 624, 155 S.E. 263 (1930). The liability of the father to reimburse the mother of an illegitimate child for expenditures reasonably incurred in the support of such child is a liability created by statute.
[11]
The judgment of the Court of Appeals is, therefore, reversed, and the matter is remanded to that court for the entry by it of an order further remanding it to the District Court of Mecklenburg County for further proceedings consistent with this opinion.
Reversed and remanded.
Justice EXUM dissenting.
I dissent from that portion of the majority opinion which holds that the determination in the 1963 criminal action of the issue of defendant‘s paternity was not res judicata in this civil action. The Restatement of Judgments § 85(1) (1942) states:
“Where a judgment is rendered in an action in which a party thereto properly acts on behalf of another, the other is
(a) bound by and entitled to the benefits of the rules of res judicata with reference to such of his interests as at the time are controlled by the party to the action;
(b) not bound by or entitled to the benefits of the rules of res judicata with reference to his interests not controlled by the party to the action.”
In this case a judgment was rendered in 1963 in an action brought under General Statute 49-2 for wilful failure of defendant to provide adequate support for his illegitimate child. The party who brought the action (the State of North Carolina) properly acted on behalf of the mother. The mother had a direct, personal pecuniary interest in the outcome of the criminal litigation; for if the father could not have been required to support this child the legal duty to provide support would have fallen upon her. N. C. Gen. Stats. 49-2, 49-4. The fact that the
Taylor v. Taylor, 257 N.C. 130, 125 S.E. 2d 373 (1962), which the majority overrules sub silentio is persuasive authority that there was sufficient mutuality of parties for the rules of res judicata to apply. Taylor is distinguishable only in that it involved a defensive use, while the instant case involves an offensive use, of the principle involved. But King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973) seems to sanction the offensive use of the doctrine. See O. Max Gardner III, “Offensive Assertion of a Prior Judgment as Collateral Estoppel—A Sword in the Hands of the Plaintiff?” 52 N.C.L. Rev. 836 (1974).
Justices HUSKINS and MOORE join in this dissenting opinion.