#### D. R. CURRENT, Administrator of the Estate of BLONDINE CURRENT, v. CLEVE WEBB, GENERAL MOTORS SALES CORPORATION, and JOHN BAXTER HILLIARD.

(Filed 26 November, 1941.)

1. Judgments § 80—

A judgment determining the existence of a material fact in controversy is conclusive upon the parties and their privies as to such fact whenever it is material in a subsequent action between them, regardless of whether the subject matter of the action is the same or not.

2. Same—

The doctrine of res judicata applies regardless of whether the prior judgment was rendered by the same court or was rendered by the Superior Court of another county.

*4263. Judgments § 29—

A judgment in rem is conclusive not only upon the parties and their privies but, under the maxim res judicata pro veritate aecipitur, is also conclusive upon those having an interest in the subject matter.

4. Judgments §§ 29, SO — Judgment that defendant is nonresident and under see. 4, eh. 217, Public Laws 1937, was exempt from service, held conclusive in a subsequent action by another party injured in same collision.

In an action against the driver of a car upon whom service of summons was had while he was in the State in obedience to a summons from a coroner to testify at an inquest, motion to vacate the service was allowed upon the court’s finding from the evidence that defendant is a nonresident and that therefore he was exempt from service of process in connection with matters which arose before his entrance into the State in obedience to the coroner’s summons. Sec. 4, ch. 217, Public Laws 1937. In a subsequent action arising out of the same collision, brought in another county of this State by the administrator of a party killed in the collision, service was had upon the defendant at the same time and in the same manner. Held: The prior adjudication that defendant is a nonresident and was exempt from service under the statute is in the nature of a judgment in rem and is res judicata as to the status and residence of the defendant, and is binding upon the administrator under the maxim res judicata pro veritate accipitur, and the holding of the court in the second action upon substantially the same evidence that defendant is a resident of this State ■and that the service of summons on him was valid must be reversed on appeal even though supported by evidence.

5. Judgments § 35 — When appeals from separate judgments are heard together and first judgment is conclusive upon palsies in second action, Supreme Court will apply doctrine of res judicata.

In a suit in which defendant was served with summons while in this State in obedience to a coroner’s summons, motion to set aside the service was granted upon the court’s adjudication that defendant is a nonresident and was exempt from the service of process under the provisions of see. 4, eh. 217, Public Laws 1937, which judgment was affirmed on appeal. In another action growing out of the same collision instituted in another county, the court found upon substantially identical evidence that defendant is a resident of this State and that the service of process in the same manner and at the same time was valid. The defendant failed to call to the court’s attention the prior adjudication that he is a nonresident. Both appeals were argued together in the Supreme Court. Held: In the appeal in the second action the Supreme Court will apply the doctrine of res judicata in determining all factors presented by the record, it not being required that the previous adjudication should have been formally pleaded at this stage of the proceeding.

Appeal by defendant Cleve 'Webb from Nettles, J., at August Term, 1941, of G-astoN.

Reversed.

Motion to vacate purported service of summons upon defendant Cleve Webb. From judgment denying tbe motion, defendant Webb appealed.

*427 H. B. Gaston and Cherry & Hollowell for plaintiff, appellee.

Helms & Mulliss for defendant Cleve Webb, appellant.

DeviN, J.

Tbis appeal presents tbe question of tbe validity of tbe service of process upon defendant Cleve Webb, tbe same person referred to in Bangle v. Webb, ante, 423, where, upon substantially tbe same evidence, a ruling as to bis amenability to service under tbe same circumstances was considered and determined.

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

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

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

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

We are constrained to bold tbat while there was evidence tending to support tbe ruling of Judge Nettles, tbe facts determined by tbe previous *428judgment in tbe Bangle 'case, supra, bad become res judicata. Tbe status and residence of tbe defendant Cleve Webb bad become judicially established. His exemption from service of process, at tbe time and place attempted, bad been determined by a competent court. Harshaw v. Harshaw, ante, 145. Tbe application of tbe rule tbat a judgment determining tbe existence of a fact is conclusive upon parties and privies is not necessarily precluded by showing tbat tbe judgment was rendered by a court in another county, or tbat tbe parties are not in all respects identical. “There is no doubt tbat a final judgment or decree necessarily affirming • tbe existence of any fact is conclusive upon tbe parties or their privies, whenever tbe existence of tbat fact is again in issue between them, not only when the subject matter is tbe same, but when tbe point comes incidentally in question in relation to a different matter, in tbe same or any other court.” 2 Freeman on Judgments, sec. 670. “It is not necessary tbat precisely tbe same parties were plaintiffs and defendants in tbe two suits; provided tbe same subject in controversy, between two or more of tbe parties, plaintiffs and defendants in tbe two suits respectively, has been in tbe 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.

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

While tbe previous adjudication in the Bangle case, supra, of tbe question raised by tbe motion in this case does not appear to have been called to tbe attention of tbe court below, both cases have been brought to this Court and are now before us, and tbe proper disposition of tbe appeal requires consideration of all the determinative factors presented by tbe record. Tbe propriety of this view, in this case, further appears from tbe fact tbat two able judges of tbe Superior Court have reached *429different conclusions as to tbe validity of tbe purported service on defendant Webb, from substantially tbe same evidence. It was not required, at tbis stage of tbe proceedings and upon a motion to vacate purported service of process, that a previous adjudication of tbe determinative fact of defendant’s exemption from service’ under tbe statute should have been formally pleaded. Krekeler v. Ritter, 62 N. Y., 372, 88 A. L. R., 577.

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

It follows that tbe judgment of Judge Nettles must be

Reversed.