Roberts v. . Pratt , 158 N.C. 50 ( 1911 )

The plaintiff appeals, alleging errors in awarding the amounts allowed defendant in his counterclaim. These amounts consisted of alleged payments by defendant made since the rendition of the judgment as indicated in the verdict on the third issue, and amounts received by defendant or his agent from rents of property in South Dakota, for which plaintiff was accountable, as ascertained and determined in the fourth issue. These amounts were largely dependent on disputed matters of fact. They were not allowed or considered in the proceedings in South Dakota by which the original judgment was obtained. On the facts as now presented, they come clearly within the principle sustained in the case of Tyler v. Capeheart,125 N.C. 64, stated as follows:

"1. A judgment is decisive of the points raised by the pleadings, or which might be properly predicated upon them; but does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiff might have joined, but which in fact are neither joined nor embraced by the pleadings.

"2. Although the present cause of action might have been set up as a second cause of action in a former suit, but was not, and was not actually litigated, and was not `such matter as was necessarily implied therein, the plea of res judicata will not avail.'"

We find no error that would justify us in disturbing the judgment, and the same is in all respects affirmed.

No error.

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