Settle ex rel. Sullivan v. Beasley , 59 N.C. App. 735 ( 1982 )

WEBB, Judge.

We affirm the judgment of the District Court. When a final judgment has been rendered by a court which necessarily determines a fact, right or issue, that judgment is conclusive in a subsequent action involving the same fact, right or issue and either identical parties or persons in privity with parties to the earlier action. An estoppel by judgment must be mutual and where one party is not estopped, the adverse party cannot be estopped. See Tidwell v. Booker, 290 N.C. 98, 225 S.E. 2d 816 (1976); King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973); Stephens v. Worley, 51 N.C. App. 553, 277 S.E. 2d 81 (1981). The facts and issues contested in the instant case and the Johnston County action are identical. The question on this appeal is whether the plaintiff in this action is in privity with the plaintiff in the Johnston County action.

The interest of the plaintiff in this action is identical with the interest of the plaintiff in the Johnston County action. G.S. 49-16 permits the mother, father, child, personal representative of the mother or the child, or in some cases, the director of Social Services, or the person who performs the duties of such persons in certain counties, to bring an action to establish paternity. Whoever brings the action, the legal consequences are the same. If paternity is established, the illegitimate child has all the rights allowed by Article 3, Chapter 49 of the General Statutes. If the plaintiff in the Johnston County action had been successful, the defendant would have been bound by the judgment as to the plaintiff in this action. We believe this gives the plaintiff in this action an identity of interest with the plaintiff in the Johnston County action so that the parties are in privity. See Masters v. Dunstan, 256 N.C. 520, 124 S.E. 2d 574 (1962).

The plaintiff argues the law has been changed to allow proof of paternity by a blood test since the action was tried in Johnston County and this change in the law prevents him from being es-topped by the Johnston County judgment. He also argues that the impact on him will be devastating if he is estopped by the judgment. We do not believe the fact that evidence may be used which was not available at a former trial or the effect of the judgment on the plaintiff allows us to ignore a final judgment. See Hospital v. Guilford County, 221 N.C. 308, 20 S.E. 2d 332 (1942).

Affirmed.

Judges Vaughn and Wells concur.