Worthington v. Wooten , 242 N.C. 88 ( 1955 )

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86 S.E.2d 767 (1955) 242 N.C. 88
L. F. WORTHINGTON
v.
Frank M. WOOTEN, Jr., as Commissioner and Pitt County Drainage District No. 8.
No. 312.
Supreme Court of North Carolina.
April 13, 1955.
*769 Sam B. Underwood, Jr., Greenville, for plaintiff-appellant.

Frank M. Wooten, Jr., Greenville, for defendant-appellee.

DEVIN, Justice.

From the pleadings and the records introduced in the trial, Judge Frizzelle concluded that the plaintiff was estopped further to prosecute this action. He held that the judgment heretofore rendered in a former action between the same parties involving the same subject matter was valid and conclusive as to the matters herein alleged as the basis of the present action. Judgment was rendered accordingly and in this we concur.

"Where a second action or proceeding is between the same parties as a first action or proceeding, the judgment in the former action or proceeding is conclusive in the latter not only as to all matters actually litigated and determined, but also as to all matters which could properly have been litigated and determined in the former action or proceeding. Southern Distributing Company v. Carraway, 196 N.C. 58, 144 S.E. 535; Moore v. Harkins, 179 N.C. 167, 101 S.E. 564, rehearing denied in 179 N.C. 525, 103 S.E. 12; J. T. McTeer Clothing Co. v. Hay, 163 N.C. 495, 79 S.E. 955; Tuttle v. Harrill, 85 N.C. *770 456." King v. Neese, 233 N.C. 132, 63 S.E.2d 123, 126.

The judgment of Judge Godwin (affirming on appeal the judgment of the clerk) from which no appeal was taken was conclusive and binding as to all matters therein decided and also as to all matters which could properly have been determined in that action. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909; In re Atkinson-Clark Canal Co., 234 N.C. 374, 67 S.E.2d 276; Banks v. Lane, 171 N.C. 505, 88 S.E. 754; 30 A.J. 914.

The Godwin judgment was not void, City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311, and even if irregular or even erroneous was binding on the parties, unless set aside or reversed on appeal, Collins v. North Carolina State Highway & Public Works Comm., 237 N.C. 277, 74 S.E.2d 709; In re Atkinson-Clark Canal Co., supra; provided the court had jurisdiction of the person and the subject matter. Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20; McIntosh NC P & P, p. 746. It is not subject to collateral attack. Price v. Edwards, 178 N.C. 493, 101 S.E. 33.

It is suggested by the plaintiff that estoppel is not pleaded by the defendants and that this defense is not now available. But the rule is that when all the facts sufficient to constitute estoppel by judgment are set out in the answer, formal pleading in terms is not required. It is the substance and not necessarily the form of a plea that matters. Alston v. Connell, 140 N.C. 485, 494, 53 S.E. 292; Current v. Webb, 220 N.C. 425, 17 S.E.2d 614; Miller v. First Nat. Bank, 234 N.C. 309, 320, 67 S.E.2d 362; McIntosh NC P & P, p. 481; 31 C.J.S., Estoppel, § 153, page 446.

We have examined the entire record in this case and reach the conclusion that the judgment of Judge Frizzelle should be affirmed.

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.