Current v. . Webb , 220 N.C. 425 ( 1941 )

APPEAL by defendant Cleve Webb from Nettles, J., at August Term, 1941, of GASTON. Reversed. This appeal presents the question of the validity of the service of process upon defendant Cleve Webb, the same person referred to in Bangle v.Webb, ante, 423, where, upon substantially the same evidence, a ruling as to his amenability to service under the same circumstances was considered and determined.

These two cases are companion cases and were argued together in this Court. They arose out of the same transaction. Both plaintiff's intestate and the plaintiff in the Bangle case, supra, were injured at the same time and place, while passengers in an automobile driven by defendant Webb. The same acts of negligence on the part of Webb and others are alleged. In each case damages are sought against the same defendants for the same tort. Both the motions for quashal of the purported service of summons on defendant Webb, and the facts underlying, are practically identical in the two cases. The service in both cases was made by the same officer at the same time.

In the Bangle case, supra, substantially the same evidence as in the instant case was presented to Judge Armstrong, who found the facts to be that at the time of the attempted service of process on defendant Webb he was a resident of the State of Georgia and had come into North Carolina in obedience to a summons from the coroner of Mecklenburg to attend and testify at an inquest, and that therefore under the statute (sec. 4, ch. 217, Public Laws 1937) he was exempt from service of process in connection with matters which arose before his entrance into the State under the summons. Judge Armstrong adjudged that the purported service was invalid and dismissed the action as to defendant Webb. This judgment was entered 29 May, 1941, and upon appeal has been affirmed by this Court.

Subsequently, at the August Term, 1941, of Gaston Superior Court, from substantially the same evidence, Judge Nettles found the facts to be that the defendant Cleve Webb was a resident of North Carolina at the time of service of process, and that he was not exempt from service under the statute referred to. Judgment was entered accordingly holding the service valid.

Thus it appears that at the time Judge Nettles made his ruling there was a previous judgment of the Superior Court, now affirmed on appeal, declaring that service on defendant Cleve Webb at the same time and place and under identical circumstances, growing out of the same transaction, was invalid because he was a nonresident of North Carolina and had come into the State in obedience to a subpoena to testify as a witness.

We are constrained to hold that while there was evidence tending to support the ruling of Judge Nettles, the facts determined by the previous judgment in the Bangle case, supra, had become res judicata. The status and residence of the defendant Cleve Webb had become judicially established. His exemption from service of process, at the time and place attempted, had been determined by a competent court. Harshaw v. Harshaw, ante, 145. The application of the rule that a judgment determining the existence of a fact is conclusive upon parties and privies is not necessarily precluded by showing that the judgment was rendered by a court in another county, or that the parties are not in all respects identical. "There is no doubt that a final judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court." 2 Freeman on Judgments, sec. 670. "It is not necessary that precisely the same parties were plaintiffs and defendants in the two suits; provided the same subject in controversy, between two or more of the parties, plaintiffs and defendants in the two suits respectively, has been in the former suit directly in issue, and decided." S. v. Continental Coal Co., 117 W. Va. 447,186 S.E. 119; Wright v. Schick, 134 Ohio St. 193, 121 A.L.R., 890; 30 Am. Jur., 955; Bank v. McCaskill, 174 N.C. 362,93 S.E. 905;Bank v. Comrs., 116 N.C. 339, 21 S.E. 410; Leary v. Land Bank, 215 N.C. 501, 2 S.E.2d 570.

The judgment in the Bangle case, supra, was rendered upon the same preliminary motion as in this case. This motion squarely presented for adjudication the status of defendant Webb, whether a resident of Georgia or of North Carolina, whether exempt from the service of process under the statute, or not. Thus the judgment was in the nature of a judgment in rem, by a court having jurisdiction not only of the parties and of the cause of action, but also of the res — the power and duty to determine the particular fact presented for adjudication. This fact the court conclusively established in that case. Its judgment as to that fact was binding upon the parties to that suit and upon all those having an interest in the subject matter of the motion, under the maxim res judicata proveritate accipitur. Herman on Estoppel and Res Judicata, ch. 5; Tart v.Western Maryland R. Co., 289 U.S. 620 (624).

While the previous adjudication in the Bangle case, supra, of the question raised by the motion in this case does not appear to have been called to the attention of the court below, both cases have been brought to this Court and are now before us, and the proper disposition of the appeal requires consideration of all the determinative factors presented by the record. The propriety of this view, in this case, further appears from the fact that two able judges of the Superior Court have reached different conclusions as to the validity of the purported service on defendant Webb, from substantially the same evidence. It was not required, at this stage of the proceedings and upon a motion to vacate purported service of process, that a previous adjudication of the determinative fact of defendant's exemption from service under the statute should have been formally pleaded. Krekeler v. Ritter, 62 N.Y. 372, 88 A.L.R., 577.

We are of opinion that the previous judgment established the status of defendant Webb as a nonresident and exempt from service under the statute, and that this must be held controlling upon the subsequent ruling upon the same question.

It follows that the judgment of Judge Nettles must be

Reversed.