Flynt Ex Rel. Barefoot v. Flynt ( 1953 )

75 S.E.2d 901 (1953) 237 N.C. 754

FLYNT
v.
FLYNT.

No. 665.

Supreme Court of North Carolina.

May 20, 1953.

Rollins & Rollins, Greensboro, for the plaintiff, appellant.

No counsel contra.

ERVIN, Justice.

The Code of Civil Procedure provides, in substance that no judge shall undertake to adjudicate a litigated cause on its merits until issues of law or fact have been joined on the pleadings of the parties and the issues thus joined have been tried in the manner appointed by law. G.S. § 1-171; G.S. § 1-172; Erickson v. Starling, 235 N. C. 643, 71 S.E.2d 384. The Code specifies, moreover, that the only pleading by which the defendant can raise an issue relating to the merits of a litigated cause is either a demurrer or an answer. G.S. § 1-124.

These fundamental provisions of the Code were set at naught in this action in the court below. The defendant did not challenge the legal sufficiency of the complaint by a demurrer. He did not controvert the factual validity of the complaint by an answer. For these reasons, no issue of any character pertaining to the merits of the plaintiff's claim for permanent alimony was before the court for decision on the hearing of this action. The court nevertheless proceeded to render a final judgment for the defendant on the merits of the cause.

In so doing, the court did more than transgress the limits of its judicial powers. It reached an erroneous conclusion respecting the legal effect of Judge Patton's ruling in the former action. Judge Patton merely passed upon the motion of the plaintiff for alimony pending the former action and counsel fees in it. The ruling in the former action has no bearing whatever on the merits of the present action for the very simple reason that the plaintiff's demand for permanent alimony was not involved in any way in the matter there heard and decided. Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53; Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349.

Indeed, the order of Judge Patton denying the plaintiff alimony pending the the former action does not necessarily even foreclose the motion of the plaintiff for alimony pending the present action. It is well settled that "the estoppel of a judgment extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a reexamination of the same questions between the same parties where in the interval the facts have changed or new facts have occurred which may alter the legal rights or relations of the litigants." 50 C.J.S., Judgments, § 712b.

Judge Patton denied the motion of the plaintiff for alimony pending the former action on this twofold ground: (1) That the plaintiff lacked the legal capacity to prosecute the former action in her own name because of her adjudged mental disability; and (2) that the plaintiff was not entitled to an award of alimony pending the former action at the time of the motion because the defendant was then providing her with adequate support through remittances to her mother. The present action is not subject to the first of these objections for the plaintiff appears in it by a next friend. G.S. § 1-64. A judicial adjudication that a husband was supporting his wife in April does not conclusively establish that he was doing likewise in August.

We note, in closing, that the defendant does not seek the abatement of the present action in the mode prescribed by law on the ground that the former action has not been dismissed and that in consequence "there is another action pending between the same parties for the same cause." McDowell v. Blythe Bros., 236 N.C. 396, 72 S.E.2d 860, 861. The defendant cannot raise this objection by demurrer because the pendency of the former action does not appear on the face of the complaint. G.S. § 1-127. In consequence, he will waive the objection unless he takes it by answer. G.S. § 1-133; G.S. § 1-134. The plaintiff may forestall all controversy on this score by causing the prior action to be dismissed on a voluntary nonsuit. Allen v. McDowell, 236 N.C. 373, 72 S.E.2d 746.

The judgment is

Reversed.