Davis v. Anderson Industries, Inc.

146 S.E.2d 817 (1966)

266 N.C. 610

Elsie DAVIS, Plaintiff, v. ANDERSON INDUSTRIES, INC., Carolina Industrial Manufacturing Corporation, and City of Greensboro.

No. 688.

Supreme Court of North Carolina.

March 2, 1966.

*819 Harry Rockwell, Greensboro, for plaintiff appellant.

Sapp & Sapp, Greensboro, for defendant Carolina Industrial Manufacturing Corporation.

Smith, Moore, Smith, Schell & Hunter, by Stephen Millikin, Greensboro, for defendant Anderson Industries, Inc.

Jordan, Wright, Henson & Nichols and William B. Rector, Jr., Greensboro, for defendant City of Greensboro.

LAKE, Justice.

The plaintiff relies on G.S. § 1-131, as amended by Session Laws of 1965, c. 747, which reads as follows, the italicized portion having been inserted by the 1965 amendment:

"Within thirty days after the return of the judgment upon the demurrer, if there is no appeal, or within thirty days after the receipt of the certificate from the Supreme Court, if there is an appeal, if the demurrer is sustained the plaintiff may move, upon three days' notice, for leave to amend the complaint. If this is not granted, judgment shall be entered dismissing the action, and if there has been no appeal from the judgment sustaining the demurrer the plaintiff may, one time, commence a new action in the same manner as if the plaintiff had been nonsuited. If the demurrer is overruled the answer shall be filed within thirty days after the receipt of the judgment, if there is *820 no appeal, or within thirty days after the receipt of the certificate of the Supreme Court, if there is an appeal. Otherwise the plaintiff shall be entitled to judgment by default final or by default and inquiry according to the course and practice of the court."

Chapter 747 of the Session Laws of 1965 was ratified 1 June 1965. Section 3 thereof provides:

"This Act shall become effective upon its ratification, and shall be applicable to pending litigation as well as to litigation commenced thereafter."

By its terms, the amendment of 1965 applies only to litigation pending on 1 June 1965 and to litigation commenced thereafter. The plaintiff's first action was not then pending, having been dismissed by the judgment entered 11 September 1964, from which no appeal was taken. The effect of that judgment and the right of the plaintiff thereafter to commence a new action must, therefore, be determined without reference to this amendment to G.S. § 1-131.

The plaintiff elected not to appeal from the judgment of 11 September 1964, dismissing her former action. The present appeal is not from that judgment and we are not required, upon this appeal, to consider any alleged error in that judgment. It is a final adjudication that the complaint in the former action "failed to state a cause of action against the defendant, or either of them." Thus, the rights of the plaintiff against these defendants on account of the matters alleged in that complaint have been adjudicated.

In Marsh v. Atlantic Coast Line R. Co., 151 N.C. 160, 65 S.E. 911, Hoke, J., speaking for the Court, said:

"[I]t is a principle universally recognized that, when a court has jurisdiction of a cause and the parties, and on complaint filed a judgment has been entered sustaining a general demurrer to the merits, such judgment, while it stands unreversed and unassailed, is conclusive upon the parties, and will bar any other or further action for the same cause."

Judgment for the defendant having been rendered upon such a demurrer, the matter set forth in the complaint is res judicata just as if the facts alleged in the complaint had been found by a jury and a judgment for the defendant had been entered upon such verdict with no appeal therefrom. Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200; Swain v. Goodman, 183 N.C. 531, 112 S.E. 36; American Nat. Bank v. Dew, 175 N.C. 79, 94 S.E. 708; Johnson v. Pate, 90 N.C. 334.

The determination of the defendants' plea of res judicata prior to a trial on the plaintiff's alleged cause of action in the present case was within the discretion of the trial judge. Wilson v. Hoyle, 263 N.C. 194, 139 S.E.2d 206; Jones v. Mathis, supra.

An examination of the evidence before the court at the hearing upon the plea in bar, consisting of the pleadings and judgment in the former action, discloses that such evidence is amply sufficient to support the findings of fact set forth in the judgment from which the present appeal is taken. There is no substantial difference between the allegations of the complaint in the present action and those in the complaint in the former action. No new or different cause of action is now alleged. Consequently, the plea of res judicata was properly sustained.

Affirmed.

MOORE, J., not sitting.

PLESS, J., and RODMAN, E. J., took no part in the consideration or decision of this case.