Barringer v. Weathington

PARKER, J.

The sole question presented is whether the court erred in refusing to sustain defendants’ plea of res judicata.

The plea of res judicata must be founded upon an adjudication on the merits and may be maintained only where there is identity of parties, subject matter, and issues. 5 Strong, N. C. Index 2d, Judgments, § 35, p. 63. Here, identity of parties and subject matter has been stipulated and the validity of plaintiff’s title was at issue in the prior proceeding as it is in this one. The only question remaining is whether the prior adjudication was on the merits. In this connection the case on appeal contains a stipulation of the parties that the referee’s report in the prior action was entered at the conclusion of plaintiff’s evidence, that the evidence which had then been presented by the plaintiff was insufficient to prove title to the land in question, and that the referee’s conclusion that the plaintiff had failed to prove title and his recommendation that the prior action should be dismissed were “supported by the insufficiency” of plaintiff’s evidence. It is, therefore, clear that the judgment dismissing plaintiff’s action in the prior case was equivalent to a non-suit for insufficiency of plaintiff’s evidence.

“It is settled law in this jurisdiction that when a prior action is nonsuited on the ground of insufficiency of plaintiff’s evidence, a plea of res judicata on the ground of a prior judgment of compulsory nonsuit can be sustained when, and only when, the allegations and evidence in the two actions are substantially the same. A plea of res judicata ordinarily cannot be determined on the pleadings in the two actions, the judgment of compulsory nonsuit entered in the prior action on the ground of insufficiency of the evidence, the record of evidence in the prior action on appeal, and the decision of the Supreme Court in respect to the prior action. A plea of res judicata can be determined only after the evidence in the second action is presented.” Powell v. Cross, 268 N.C. 134, 150 S.E. 2d 59.

The trial court was, therefore, correct in denying defendants’ plea in the present case prior to hearing plaintiff’s evidence. Only after plaintiff’s evidence is presented in this action will it be possible to determine if the evidence in the two actions is substantially identical.

Coburn v. Timber Corporation, 260 N.C. 173, 132 S.E. 2d 340, relied on by appellants, is distinquishable. In that case the Supreme Court noted that both parties had presented extensive evidence as to title in the prior proceeding before the referee, and the Court stated (p. 176) “[t]he report of the referee, approved by the judge, is equivalent to an express jury finding that plaintiffs were not the owners of the land in controversy. They are now estopped as to Timber Corporation to assert that they do own the land.” In the case now before us the record clearly establishes that the report of the referee in the prior processioning proceeding was not equivalent to an express jury finding that plaintiff was not the owner of the land in controversy; all that the referee found was that plaintiff’s evidence had been insufficient to establish his title.

Affirmed.

Mallabd, C.J., and Beitt, J., concur.