Houghton v. Harris ( 1955 )

89 S.E.2d 860 (1955) 243 N.C. 92

R. E. HOUGHTON
v.
H. V. HARRIS.

No. 175.

Supreme Court of North Carolina.

November 9, 1955.

I. C. Wright and Stevens, Burgwin & McGhee, Wilmington, for plaintiff appellant.

Robert D. Cronly, Jr., Wilmington, and Varser, McIntyre & Henry, Lumberton, for defendant appellee.

BARNHILL, Chief Justice.

The judgment signed by Frizzelle, J., is not void for want of jurisdiction. He acquired jurisdiction at term and signed the final judgment out of term and out of the county by consent of the parties. Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Killian v. Maiden Chair Co., 202 N.C. 23, 161 S.E. 546; Strickland v. Kornegay, 240 N.C. 758, 83 S.E.2d 903.

The rule that a second action involving the same subject matter as one theretofore duly instituted will be dismissed whenever the existence of the former action is called to the attention of the court by answer or other proper plea is not jurisdictional. It is merely procedural, and is designed to prevent a multiplicity of actions. Whenever the existence of the former action is called to the attention of the court, he must dismiss the second action and relegate the plaintiff therein to his right to plead a cross action or counterclaim in the former action. When, however, the second action is prosecuted to final judgment before the first cause is heard, the judgment entered is valid and binding on the parties. It estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings which the parties in the exercise of reasonable diligence could and should have brought forward. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567; Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505; Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805; Annotation 2 A.L.R. 2d 511.

There is a further reason why the judgment entered in the court below must be affirmed. The judgment entered in the case entitled Harris v. Houghton was entered by consent, and a consent judgment is a contract between the parties. By said compromise settlement, each party bought his peace respecting any liability created by the collision. The adjustment of said claim by the payment of the amount agreed constituted an acknowledgment, as between the parties, of the liability of Houghton and the nonliability of Harris, or at least a waiver of his liability. Neither party thereafter had any right to pursue the other in respect to any liability arising out of any alleged negligence proximately causing the collision which is the subject matter of the suit. Snyder v. Kenan Oil Co., supra.

A concluded agreement of compromise must in its nature be as obligatory in all respects as any other, and either party may use it whenever its stipulations or statements of fact become material evidence for him. Sutton v. Robeson, 31 N.C. 380; Snyder v. Kenan Oil Co., supra; Herring v. Queen City Coach Co., supra. See also Jenkins v. Fields, 240 N.C. 776, 83 S.E.2d 908; Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673; Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909, 911.

"It is to be noted that the phase of the doctrine of res judicata which precludes relitigation of the same cause of action is broader in its application than a mere determination of the questions involved in the prior action. The bar of the judgment in such cases extends not only to matters actually determined, but also to other matters which in the exercise of due diligence could have been presented for determination in the prior action. Bruton v. Carolina Power & Light Co., supra." Gaither Corp. v. Skinner, supra.

The pleaded judgment is regular upon its face. It was rendered by a court of competent jurisdiction in a case in which this plaintiff was the defendant, and want of jurisdiction of the person is not suggested. So long as it remains of record, it constitutes a complete bar to plaintiff's right to recover in this cause. Stone v. Queen City Coach Co., supra, and cases cited.

For the reasons stated the judgment entered in the court below is

Affirmed.