Morris v. Perkins , 6 N.C. App. 562 ( 1969 )

170 S.E.2d 642 (1969) 6 N.C. App. 562

Steve MORRIS
v.
A. E. PERKINS and wife, Gypsy K. Perkins.

No. 6929SC503.

Court of Appeals of North Carolina.

November 19, 1969. Certiorari Denied February 3, 1970.

Cecil C. Jackson, Jr., Asheville, for plaintiff appellant.

Monroe M. Redden, Redden, Redden & Redden, Hendersonville, for defendant appellees.

BRITT, Judge.

In Troy Lumber Co. v. Hunt, 251 N.C. 624, 112 S.E.2d 132, 81 A.L.R. 2d 1317, in an opinion by Parker, J. (now C. J.), it is said:

"When a former judgment is set up as a bar or estoppel, the question is whether the former adjudication was on the merits of the action, and whether there is such an identity of the parties and of the subject matter in the two actions, and whether the merits of the second action are identically the same, as will support a plea of res judicata. Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123; McIntosh, N. C. Practice & Procedure, 2d Ed., Sec. 1236(7)."

In Shaw v. Eaves, 262 N.C. 656, 138 S.E.2d 520, in an opinion by Moore, J., it is said:

"``The doctrine of res judicata as stated in many cases is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.' 30A Am. Jur., Judgments, s. 324, p. 371. In order for a judgment to constitute res judicata in a subsequent action there must be identity of parties, subject matter, issues and relief demanded, and it is required further that the estoppel be mutual. Carolina Power & Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E.2d 167; Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R. 2d 436; Leary v. Land Bank, 215 N.C. 501, 2 S.E.2d 570. In order for a party to be barred by the doctrine of res judicata, it is necessary not only that he should have had an opportunity for a hearing but also that the identical question must have been considered and determined adversely to him. Crosland-Cullen Co. v. Crosland, 249 N.C. 167, 105 S.E.2d 655. * * *

* * * * * *

An estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it had it gone against him. Bernhard v. Bank of America Nat. Trust & Sav. Ass'n, 19 Cal. 2d 807, 122 P.2d 892. * * *"

The judgment pleaded in bar in this action was rendered in an action in which Steve Morris, the plaintiff in this action, was the only plaintiff and The Mountainaire Corporation was the only defendant. In the present action, Steve Morris is the plaintiff and Perkins and Mrs. Perkins are the defendants. Thus, we do not find an identity of parties in the two actions. Was there privity among the parties? We think not.

In the 4th Edition of Black's Law Dictionary, p. 1361, privity is defined as follows:

"Mutual or successive relationship to the same rights of property. 1 Greenl. Ev. § 189; Duffy v. Blake, 91 Wash. 140, 157 P. 480, 482; Haverhill v. International Ry. Co., 217 A.D. 521, 217 N.Y.S. 522, 523.

Thus, the executor is in privity with the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. Litchfield v. Crane, 8 S. Ct. 210, 123 U.S. 549, 31 L. Ed. 199."

In Dudley v. Jeffress, 178 N.C. 111, 100 S.E. 253, Clark, C. J., quoting from Boughton v. Harder, 46 A.D. 352, 61 N.Y.S. 574, said: "Privity implies succession. He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title, and thus takes it charged with the burden attending it." There is no showing that Mountainaire acquired any property rights in the former action that succeeded to defendants. Furthermore, it cannot be said that any estoppel created by the former action was mutual as between plaintiff on the one hand and defendants herein on the other. We perceive nothing about the former action that would have been binding on Perkins or Mrs. Perkins regardless of its outcome.

It is true that the record discloses that Perkins and Mrs. Perkins were major shareholders in Mountainaire but that fact does not create privity of parties. Analogous is the holding in Troy Lumber Co. v. Hunt, supra, stated in the fourth headnote as follows:

"A corporation is not barred from maintaining an action for damages to its vehicle by reason of a prior judgment in favor of defendant in an action by its president against the same defendant to recover for personal injuries arising out of the same accident, even though the president of the corporation is its controlling shareholder, and chairman of its board of directors, and has control of its action, since there is no identity or privity of parties within the purview of the doctrine of res judicata."

Nor do we think there is such an identity of subject matter in the two actions that would support the plea of res judicata. In the former action, plaintiff sued to recover on certain notes and Mountainaire pled as a setoff, cross-action or counterclaim the notes assigned to it by Perkins. Although in the present action plaintiff asks that the $16,902.50 note from plaintiff to Perkins dated 1 January 1965 be rescinded and cancelled, the principal relief prayed for in the complaint is that defendants be required to transfer to plaintiff 455 shares of stock in Mountainaire or if the stock cannot be recovered that plaintiff have judgment against defendants for $50,000.00. The judgment in the former action made no adjudication regarding any stock in Mountainaire; it only adjudicated the rights of the parties to that suit relative to certain promissory notes. It cannot be said that the identical question posed in the instant case was considered and determined adversely to plaintiff in the former action. Crosland-Cullen Co. v. Crosland, supra.

The only question before us is did the trial court commit error in sustaining defendants' plea in bar and dismissing the action on that ground. We hold that it did and the judgment dismissing the action is

Reversed.

BROCK and VAUGHN, JJ., concur.