{ "id": 8631485, "name": "MOZELLE STEELE v. KEITH M. BEATY and CHARLIE HAWORTH", "name_abbreviation": "Steele v. Beaty", "decision_date": "1939-05-31", "docket_number": "", "first_page": "680", "last_page": "685", "citations": [ { "type": "official", "cite": "215 N.C. 680" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "197 S. E., 135", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630131 ], "opinion_index": 0, "case_paths": [ "/nc/213/0666-01" ] }, { "cite": "130 Ark., 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722708 ], "opinion_index": 0, "case_paths": [ "/ark/130/0566-01" ] }, { "cite": "27 N. C., 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275840 ], "opinion_index": 0, "case_paths": [ "/nc/27/0557-01" ] }, { "cite": "25 N. C., 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684591 ], "opinion_index": 0, "case_paths": [ "/nc/25/0058-01" ] }, { "cite": "52 Am. Dec., 541", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "81 A. L. R., 114", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "189 S. E., 494", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625523 ], "opinion_index": 0, "case_paths": [ "/nc/211/0195-01" ] }, { "cite": "204 N. C., 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626056 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/204/0802-01" ] }, { "cite": "29 L. Ed., 60", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "120 U. S., 89", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3467951 ], "opinion_index": 0, "case_paths": [ "/us/120/0089-01" ] }, { "cite": "68 Am. Dec., 159", "category": "reporters:federal", "reporter": "Am. Dec.", "weight": 2, "opinion_index": 0 }, { "cite": "87 S. E., 341", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N. C., 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660652 ], "opinion_index": 0, "case_paths": [ "/nc/170/0515-01" ] }, { "cite": "25 N. C., 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695155 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/25/0440-01" ] } ], "analysis": { "cardinality": 593, "char_count": 13328, "ocr_confidence": 0.454, "pagerank": { "raw": 2.753297051887859e-07, "percentile": 0.8329120732521471 }, "sha256": "4df46d720240146129a7b3ebdafa0cde0d5d726c4c87e8a9b01177b2ef66f463", "simhash": "1:9e6b4428fa45e6a8", "word_count": 2357 }, "last_updated": "2023-07-14T22:25:15.554902+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ClabKSON and ScheNci\u00ed, JJ., do not concur in the opinion of the Court, and think that the defendants are entitled to only a new trial." ], "parties": [ "MOZELLE STEELE v. KEITH M. BEATY and CHARLIE HAWORTH." ], "opinions": [ { "text": "BabNiiill, J.\nWhile the plaintiff in her reply categorically denied the entry of the judgment pleaded in bar, in her testimony she admitted the entry of this judgment and her signature consenting thereto. She further admitted that she, with her attorneys, went to the office of the clerk of the Superior Court at the time of the entry of the judgment and was there and then paid over the desk of the clerk a sum of money, denying, however, that she received the amount the defendants claim was paid. She further admitted that she appeared at the clerk\u2019s office and this judgment was entered shortly after the execution of the second release which the defendants plead in bar. If the court was in error in concluding as a matter of law that this judgment is not a bar then we need not consider any of the other numerous exceptions entered and relied upon by the defendants.\nAt common law a judgment against the plaintiff was upon a retraxit, non -pros, nonsuit, nolle prosequi, discontinuance or a judgment on an issue found by the jury in favor of the defendant, or upon demurrer. 7 Bacon\u2019s Abridgement, 214; Bond v. McNider, 25 N. C., 440; Grimes v. Andrews, 170 N. C., 515, 87 S. E., 341.\nA judgment of discontinuance is one of dismissal of plaintiff\u2019s action based on the interruption in proceedings occasioned by the failure of the plaintiff to continue the suit regularly from time to time as he ought. 3 Bl. Comm., 296, Enc. Law Die., 2nd Ed.\nA nolle prosequi is an entry made on the record by which the plaintiff declares that he will proceed no further. This type of judgment is now superseded by judgments of voluntary nonsuit.\nA non pros is a judgment entered when tbe plaintiff at any stage of the proceedings fails to prosecute his action, or any part of it, in due time. The judgment is entered at the instance of defendant who obtains costs against the plaintiff. This type of judgment is now in the form of a judgment of involuntary nonsuit.\nA retraxit is the act by which the plaintiff withdraws his suit. It differs from a nonsuit \u2014 the former being the act of the plaintiff himself, for it cannot even be entered by attorney, and it must be after declaration filed. Callaghan & Co., Cyc. Law Lie., 2nd Ed. The one is negative and the other is positive; the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon the payment of the costs; but a retraxit is an open and voluntary renunciation of his suit in court. Bond v. McNider, supra; Grimes v. Andrews, supra; 3 Bl. Comm., 296; Thomason v. Odom, 68 Am. Dec., 159.\nJudgment of nonsuit, of non pros, of nolle pros, of dismissal, are exceptions to the general rule that when the pleadings, the court, and the parties are such as to permit of a trial on the merits, the judgment will be considered as final and conclusive of all matters which could have been so tried. A dismissal or nonsuit not determining the rights of the parties cannot support the plea of res judicata. Grimes v. Andrews, supra.\nA retraxit, like a judgment on the merits, is a bar and estops the plaintiff from again proceeding in another suit on the same cause of action. Enc. Law Die.,' 2nd Ed., McIntosh Prac. & Proe., p. 699; 2 Arch Practice, 250; 7 Bacon\u2019s Abridgement, 215; State Medical Examining Board v. Stewart, 13 Ann. Cases, 653; Crossman v. Davis, 79 Calif., 603; Commonwealth Bank v. Hopkins, 2 Dana (Ky.), 395; United States v. Parker, 120 U. S., 89, 29 L. Ed., 60; Bond v. McNider, supra; Grimes v. Andrews, supra; Thomason v. Odom, supra; 9 R. C. L., 192, 202, sec. 17.\nA judgment in retraxit is usually based upon and follows a settlement out of court. Where the parties to an action have settled their dispute and agreed to a dismissal such dismissal is a retraxit and amounts to a decision upon the merits. State Medical Examining Board v. Stewart, supra; Crossman v. Davis, supra; Commonwealth Bank v. Hopkins, supra; United States v. Parker, supra; Meyer v. Fenner, 204 N. C., 802; Cason v. Shute, 211 N. C., 195, 189 S. E., 494. The rule seems to be universal that a judgment of dismissal entered by agreement of the parties pursuant to a compromise and settlement of the controversy is a judgment on the merits barring any other action for the same cause. 34 C. J., 787, 2 Freeman on Judgments (5th Ed.), 1596; State ex rel. Wilson v. Young, 81 A. L. R., 114. The legal effect of an order dismissing a suit agreed is to bar any other suit between tbe same parties on the original cause of action thus adjusted by them and merged in the judgment of the court, rendered at their instance, and in consequence of the agreement. Jarboe v. Smith, 52 Am. Dec., 541, (Ky.); Hoover v. Mitchell, 25 Gratt (Va.), 387. It is virtually an acknowledgment by the plaintiff in open court as in retraxit that the plaintiff has no cause of action, or rather no further cause of action. It is not merely an abandonment of his suit by the plaintiff as in a nonsuit; it is the concurrent action of both parties; it is a representation by the plaintiff to the court that the suit has been agreed, which is assented to by the defendant, and thereupon the suit is dismissed agreed by the judgment of the court. Hoover v. Mitchell, supra; Gason v. Shute, supra.\nIf the judgment is in such form as to leave any doubt whether it is a judgment of nonsuit, in retraxit, or upon the merits, testimony in respect thereto is admissible. Justice v. Justice, 25 N. C., 58; Massey v. Lemon, 27 N. C., 557; Meyer v. Fenner, supra; 2 Freeman on Judgments, 5th Ed., page 1597.\nTo hold that a judgment of dismissal by consent is not a bar would deny any effect whatever to the agreement of the parties and would treat the judgment of dismissal merely as a voluntary act of the plaintiff. Doan v. Bush, 130 Ark., 566. The legal deduction to be drawn from a judgment dismissing a suit by agreement of the parties is that the parties had by their agreement adjusted the subject matter of the controversy in that suit; and the legal effect'of such a judgment is, therefore, that it will operate as a bar to any other suit between the same parties on the identical cause of action then adjusted by them and merged in the judgment therein rendered at their instance and in consequence of their agreement.\n\u201cIf in the former action plaintiff was sane and capable of consenting to the judgment he is bound by his consent evidenced by his signature and by that of his attorneys. Cason v. Shute, supra.\u201d Gibson v. Gordon, 213 N. C., 666, 197 S. E., 135.\nIt appears upon the face of the judgment pleaded by the defendants in bar of plaintiff\u2019s present action that it is more than an ordinary judgment of voluntary nonsuit or dismissal. The plaintiff announced in open court before the clerk, who had authority to enter judgment, that she did not care to further prosecute said action and has agreed that the same may be dismissed. The judgment further recites that \u201cby consent it is agreed that said action be, and the same is, hereby dismissed.\u201d The judgment likewise provided for withdrawal of the summons and complaint from the record. It was consented to in writing by the plaintiff and her counsel. These recitals in the judgment and the written consent of the plaintiff are not ordinary provisions of a judgment of voluntary nonsuit. They are indicia of a judgment in retraxit based on an agreement of the parties and indicate a settlement out of court. This view is supported by the uncontradicted testimony in the record that the judgment was signed in consequence of a release theretofore executed by the plaintiff and upon a consideration paid to her at the very time of the entry of the judgment. Even if it be conceded that the judgment upon its face does not clearly indicate a judgment in retraxit, we are of the opinion that when considered in the light of the uncontradicted testimony it must be so interpreted, and certainly it is a judgment by consent that the plaintiff shall not further prosecute her action. So long as it remains in full force and effect it is a complete bar to plaintiff\u2019s present action.\nIt can be attacked on the grounds of mental incapacity of the plaintiff only by motion in the cause. Gibson v. Gordon, supra.\nThe motion for judgment as of nonsuit at the conclusion of all of the evidence should have been allowed.\nReversed.\nClabKSON and ScheNci\u00ed, JJ., do not concur in the opinion of the Court, and think that the defendants are entitled to only a new trial.", "type": "majority", "author": "BabNiiill, J." } ], "attorneys": [ "Jalee F. Newell, B. F. Wellons and Jno. A. McRae for plaintiff, appellee.", "H. L. Taylor and J. Laurence J ones for defendants, appellants." ], "corrections": "", "head_matter": "MOZELLE STEELE v. KEITH M. BEATY and CHARLIE HAWORTH.\n(Filed 31 May, 1939.)\n1. Judgments \u00a7 33c \u2014 Judgment held one upon a retraxit, which constitutes a bar to subsequent action.\nThe judgment pleaded as a bar to the present suit recited that the plaintiff therein did not care to further prosecute the action and had agreed that the same be dismissed, and upon motion and agreement it was ordered that the action be dismissed and that the summons and complaint be withdrawn from the records. The judgment was consented to in writing by plaintiff personally, and it further appeared by uncontra-dicted evidence that the judgment was signed in consequence of a release theretofore executed by plaintiff and upon a consideration paid to her at the very time of the entry of the judgment. Held: The judgment was one upon a retraxit, which constitutes a bar to a subsequent action on the same subject matter between the parties, and defendants\u2019 motion to non-suit the second action should have been granted. The distinction between judgments upon a retraxit, which are usually based upon a settlement out of court and are entered upon consent of both parties, and judgments of nonsuit, non pros, and of nolle pros, which do not determine the merits and cannot support a plea of res judicata, pointed out.\n2. Clerks of Court \u00a7 3\u2014\nClerks of the Superior Court have jurisdiction to enter a judgment upon a retraxit.\n3. Judgments \u00a7 35\u2014\nIf, upon the plea of estoppel by judgment, the nature of the judgment does not clearly appear upon its face, the court may hear evidence to determine whether the judgment is one of nonsuit or one upon a retraxit, which determines the cause upon its merits and constitutes a bar to a subsequent action.\n4. Judgments \u00a7 32b\u2014\nA judgment upon a retraxit is a complete bar to a subsequent action between the same parties upon the same subject matter so long as it remains in full force and effect, and it can be attacked on the grounds of mental incapacity only by motion in the cause.\nClabicson and Schenck, JJ., dissenting.\nAppeal by defendants from Hamilton, Special Judge, at October Extra Term, 1938, of MeckleNbueg.\nReversed.\nThis is an action to recover damages for personal injuries alleged to have been caused by an assault by the defendants in attempting to perform an abortion upon plaintiff.\nThe defendants denied the allegation contained in plaintiff\u2019s complaint, charging them with an attempt to produce an abortion. In further defense they pleaded two certain releases from any further claims or rights of action against them executed by the plaintiff. They likewise pleaded a judgment in a former action based on the same cause of action entitled as in this case, entered in the Superior Court of Mecklenburg County in words as follows:\n\u201cThe plaintiff in the above entitled action does not care to further prosecute said action, and has agreed that the same may be dismissed.\n\u201cUpon motion and by consent it is agreed that said action be, and the same is hereby dismissed, and it is ordered that the summons and complaint in said action be, and the same is hereby withdrawn from the records.\u201d\nThe judgment was signed 4 October, 1937, by the clerk of the Superior Court of Mecklenburg County and was consented to by the plaintiff in person and by her counsel, which consent was endorsed upon the judgment.\nThe plaintiff admitted the execution of the releases (or some paper writings) but alleged that at the time of their execution she did not have sufficient mental capacity to understand the nature and effect of her action and that the execution of the same was obtained by fraud. She likewise made categorical denial of the entry of the judgment pleaded in bar by the defendants.\nThe jury, by answering the issues submitted, found that the defendants committed an assault upon the plaintiff, as alleged; that at the time of the execution of the releases the plaintiff was not of sufficient mental capacity to understand the nature and effect of her action; that tbe releases were not procured by fraud; and assessed damages, both compensatory and punitive. The eighth issue as follows: \u201c8. Is the plaintiff\u2019s cause of action barred by the judgment of October 4, 1937, entered in that action entitled, \u2018Mozelle Steele v. K. M. Beaty and Charlie Haworth/ as alleged in the answer?\u201d was answered by the court, \u201cNo,\u201d as a matter of law upon the theory that nothing was finally and definitely concluded by that judgment. To the action of the court in answering the eighth issue \u201cNo\u201d as a matter of law and to its instruction to the jury in respect thereto, the defendants duly excepted.\nThere was a- judgment for the plaintiff upon the verdict. The defendants excepted and appealed.\nJalee F. Newell, B. F. Wellons and Jno. A. McRae for plaintiff, appellee.\nH. L. Taylor and J. Laurence J ones for defendants, appellants." }, "file_name": "0680-01", "first_page_order": 746, "last_page_order": 751 }