{
  "id": 8551152,
  "name": "MARSHALL BRYAN SUTTON v. CLAUDE S. SUTTON, JR.",
  "name_abbreviation": "Sutton v. Sutton",
  "decision_date": "1973-06-13",
  "docket_number": "No. 7318DC290",
  "first_page": "480",
  "last_page": "481",
  "citations": [
    {
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      "cite": "18 N.C. App. 480"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "196 S.E. 2d 282",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1973,
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          "page": "286"
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    {
      "cite": "18 N.C. App. 45",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8547090
      ],
      "year": 1973,
      "pin_cites": [
        {
          "page": "50"
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  "last_updated": "2023-07-14T21:14:36.293491+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Baley concur."
    ],
    "parties": [
      "MARSHALL BRYAN SUTTON v. CLAUDE S. SUTTON, JR."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe correctness of the order appealed from depends on the effect given the judgment of voluntary dismissal with prejudice dated 21 May 1971.\nIn Collins v. Collins, 18 N.C. App. 45, 50, 196 S.E. 2d 282, 286 (1973), Judge Britt, writing for this court, stated:\n\u201cUnder the former practice a judgment of voluntary nonsuit terminated the action and no suit was pending thereafter in which the court could make a valid order. 7 Strong, N. C. Index 2d, Trial, \u00a7 30, p. 317. We think the same rule applies to an action in which a plaintiff takes a voluntary dismissal under G.S. 1A-1, Rule 41(a) (1).\u201d\nRegardless of what name we apply to the order dated 21 May 1971, the effect thereof was to terminate the action and when plaintiff\u2019s motion in the cause was made, no action was pending wherein the court could enter a valid order. The order denying the motion is\nAffirmed.\nJudges Britt and Baley concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Smith, Moore, Smith, Schell & Hunter by Jack W. Floyd for plaintiff appellant.",
      "Cahoon & Swisher by Robert S. Gaboon for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "MARSHALL BRYAN SUTTON v. CLAUDE S. SUTTON, JR.\nNo. 7318DC290\n(Filed 13 June 1973)\nRules of Civil Procedure \u00a7 41; Trial \u00a7 30\u2014 dismissal with prejudice \u2014 subsequent motion in the cause\nWhere the trial court dismissed with prejudice plaintiff\u2019s action for alimony and child custody and support because the parties had settled the case by execution of a deed of separation, the action was terminated and the court had no authority to consider a motion in the . cause thereafter filed by plaintiff.\nAppeal by plaintiff from Washington, Judge, 18 December 1972 Session of District Court held in Guilford County, Greensboro Division.\nFacts pertinent to a resolution of this appeal are summarized as follows:\nOn 19 January 1971, plaintiff, Marshall Bryan Sutton, instituted this action against her husband, defendant Claude S. Sutton, Jr., for child custody and support, alimony pendente lite, permanent alimony, possession of the homeplace and its furnishings and a reasonable attorney\u2019s fee. On 26 February 1971, Judge Herman E. Enochs entered an order awarding plaintiff child custody and support and temporary alimony. Defendant excepted to and appealed from the order of Judge Enochs. On 21 May 1971, before the appeal was heard, counsel for plaintiff and defendant consented to the following order of Judge Enochs:\n\u201cThis Cause coming on to be heard, and being heard, before the undersigned judge presiding, and it appearing that the parties have compromised and settled all matters at issue in this cause, and have entered into a deed of separation which sets forth the terms of their settlement, and that, therefore, this case is rendered moot and should be dismissed;\nNow, therefore, it is Ordered, Adjudged and Decreed that this cause be, and the same hereby is, including all claims asserted by both parties, dismissed with prejudice. Plaintiff shall pay the costs.\u201d\nOn 6 November 1972, plaintiff filed a motion in the cause \u201cfor an order incorporating certain unperformed provisions of a deed of separation relating to alimony and child support into an order of this Court, and for an increase in the payments required by defendant by said agreement for child support and alimony.\u201d On 20 December 1972, defendant filed a responsive motion to dismiss plaintiff\u2019s motion, alleging, inter alia, that \u201cthis civil action was dismissed and completely terminated by consent judgment entered by this Court on May 21, 1971.\u201d\nFrom an order dated 22 December 1972 denying her motion, plaintiff appealed.\nSmith, Moore, Smith, Schell & Hunter by Jack W. Floyd for plaintiff appellant.\nCahoon & Swisher by Robert S. Gaboon for defendant ap-pellee."
  },
  "file_name": "0480-01",
  "first_page_order": 504,
  "last_page_order": 505
}