Hinson v. Hinson

195 S.E.2d 98 (1973) 17 N.C. App. 505

Herbert G. HINSON
v.
Virginia Robbin HINSON.

No. 7310DC247.

Court of Appeals of North Carolina.

March 14, 1973.

Boyce, Mitchell, Burns & Smith by Eugene Boyce, Raleigh, for plaintiff appellant-appellee.

Gulley & Green by Jack P. Gulley, Raleigh, for defendant appellant.

BRITT, Judge.

Did the trial court err in concluding that the judgment entered by Judge Copeland on 18 March 1968 was a final judgment? We answer in the negative.

G.S. § 1A-1, Rule 54(a) provides: "A judgment is either interlocutory or the final determination of the rights of the parties." This definition of judgment was formerly contained in G.S. § 1-208. An interlocutory judgment is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy; a final judgment is one which disposes of the cause as to all parties, leaving nothing to be judicially determined between them in the trial court. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950).

Defendant contends that in the former action plaintiff asked for divorce from bed and board and custody of the child; that in her cross action in the former cause defendant asked for custody of and support for the child, alimony without divorce based on plaintiff's abandonment of her, and counsel fees; that inasmuch as the judgment in the former action made no determination (1) of plaintiff's claim for divorce from bed and board or (2) defendant's cross action for alimony based on plaintiff's abandonment, those issues have not been resolved. Defendant insists she is entitled to her "day in court" on her claim for alimony.

In Bunker v. Bunker, 140 N.C. 18, 52 S. E. 237 (1905), opinion by Justice Walker, we find:

"* * * If there by any one principle of law settled beyond all dispute, it is this: that whensoever a cause of action, in the language of the law, `transit in rem judicatam,' and the judgment thereupon remains in full force and unreversed, the original cause of action is merged and gone forever; and so it is, also, that if the plaintiff had an opportunity of recovering something in litigation formerly between him and his adversary, and but for the failure to bring it forward or to press it to a conclusion before the court he might have recovered it in the original suit. Whatever does not for that reason pass into and become a part of the adjudication of the court is forever lost to him. U. S. v. Leffler, 11 Pet. 101, 9 L.Ed. 642. Judge Willes thus states the rule: `Where the cause of action is the same, and the plaintiff has had an opportunity in the former suit of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter action.' * * *"

Applying the principle stated in Bunker to the instant case, when defendant consented to the 1968 judgment and failed to press her claim for alimony to a conclusion, we think she surrendered her right to pursue the claim based upon any occurrences prior to that time.

Defendant argues that the effect of the 18 March 1968 judgment was to grant plaintiff a divorce from bed and board, something that Judge Copeland was without authority to do inasmuch as G.S. § 50-10 required issues in divorce from bed and board actions to be determined by a jury. Assuming, arguendo, the effect of the judgment was to grant plaintiff a divorce from bed and board, it would appear that the parties were able to waive jury trial in view of the adoption in 1962 of Sec. 12 of Article IV of the Constitution of North Carolina which in 1968 provided as follows: "In all issues of fact joined in any court, the parties in any civil case may waive the right to have the same determined by a jury, in which case the finding of the judge upon the facts shall have the force and effect of a verdict by a jury." (Note: The substance of said section appears as Sec. 14 of Article IV of the present State Constitution.)

Defendant assigns as error the admission of certain evidence at the hearing. It is well settled in this jurisdiction that in a trial or hearing by the court the rules of evidence are not so strictly enforced as in a jury trial and it will be presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby. 7 Strong, N.C. Index 2d, Trial, § 57, p. 376. The trial court's findings of fact are fully supported by competent evidence presented at the hearing and it does not affirmatively appear that the court was influenced by any incompetent evidence presented.

We hold that the trial court properly concluded that the judgment entered by Judge Copeland was a final judgment, therefore, the order appealed from is

Affirmed.

PARKER and HEDRICK, JJ., concur.