Williams v. Herring

BRITT, Judge.

Appellants contend that each of them owns more than one-seventh interest in the lands and that the judgment of Judge Webb, affirmed by this court, is not res judicata in determining their interests. We reject this argument and hold that the judgment is res judicata.

In Masters v. Dunstan, 256 N.C. 520, 523-524, 124 S.E. 2d 574, 576 (1962), in an opinion by Justice Clifton L. Moore, we find:

“ Tt is fundamental that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and privies, in all other actions involving the same matter.’ Bryant v. Shields, 220 N.C. 628, 18 S.E. 2d 157. ‘... (W)hen a fact has been agreed upon or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.’ Humphrey v. Faison, 247 N.C. 127, 100 S.E. 2d 524, citing and quoting Armfield v. Moore, 44 N.C. 157.”

See also Morris v. Perkins, 6 N.C. App. 562, 170 S.E. 2d 642 (1969).

Appellants argue that the former appeal was from an interlocutory order; that the order was not appealable, therefore, the judgment of Judge Webb was not res judicata. In support of their argument, they cite Hyman v. Edwards, 217 N.C. 342, 7 S.E. 2d 700 (1940). We think there is an obvious distinction between the cases.

In Hyman, the petition asked for a sale of the land for partition. One of the respondents filed answer alleging that the land was capable of actual partition and asked for that relief. Following a hearing, the Clerk ordered an actual partition and appointed commissioners. Petitioners appealed and the judge affirmed the Clerk’s order. Petitioners thereupon appealed to the Supreme Court and respondents filed a motion to dismiss the appeal. The Supreme Court did not consider the case on the merits but allowed the motion to dismiss the appeal on the ground that petitioners had appealed from an interlocutory order.

In this cause, there was no motion to dismiss the former appeal and this court proceeded to pass upon the merits of the case. Therefore, as to the parties to this cause, the Webb judgment is conclusive “of rights, questions and facts in issue” at that time. The interests of the respective parties, including appellants, in the land was the principal issue at the time of the Webb judgment and the appeal to this court therefrom.

The judgment appealed from is

Affirmed.

Chief Judge Brock and Judge Campbell concur.