{ "id": 8573177, "name": "NICHOLAS A. WALKER v. CARL O. STORY", "name_abbreviation": "Walker v. Story", "decision_date": "1962-02-28", "docket_number": "", "first_page": "453", "last_page": "456", "citations": [ { "type": "official", "cite": "256 N.C. 453" } ], "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": "112 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "251 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626310 ], "opinion_index": -1, "case_paths": [ "/nc/251/0485-01" ] }, { "cite": "116 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623762 ], "opinion_index": 0, "case_paths": [ "/nc/253/0220-01" ] }, { "cite": "117 S.E. 172", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656029 ], "opinion_index": 0, "case_paths": [ "/nc/185/0339-01" ] }, { "cite": "112 S.E. 32", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657075 ], "opinion_index": 0, "case_paths": [ "/nc/183/0517-01" ] }, { "cite": "90 S.E. 789", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255077 ], "opinion_index": 0, "case_paths": [ "/nc/172/0632-01" ] }, { "cite": "89 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683167 ], "opinion_index": 0, "case_paths": [ "/nc/89/0273-01" ] }, { "cite": "6 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597345 ], "opinion_index": 0, "case_paths": [ "/nc/217/0001-01" ] }, { "cite": "90 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622751 ], "opinion_index": 0, "case_paths": [ "/nc/243/0188-01" ] }, { "cite": "86 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616494 ], "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0677-01" ] }, { "cite": "84 S.E. 2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603956 ], "opinion_index": 0, "case_paths": [ "/nc/241/0146-01" ] }, { "cite": "151 S.E. 266", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "198 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604454 ], "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/198/0235-01" ] }, { "cite": "100 S.E. 2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625516 ], "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0111-01" ] }, { "cite": "25 S.E. 2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601025 ], "opinion_index": 0, "case_paths": [ "/nc/223/0141-01" ] }, { "cite": "73 S.E. 2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626602 ], "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0510-01" ] }, { "cite": "116 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622282 ], "opinion_index": 0, "case_paths": [ "/nc/253/0059-01" ] }, { "cite": "112 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626310 ], "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0485-01" ] } ], "analysis": { "cardinality": 431, "char_count": 8153, "ocr_confidence": 0.553, "pagerank": { "raw": 2.2339825264244944e-07, "percentile": 0.7793182150774042 }, "sha256": "6580b9b7b5e094445a96ad3c310952f4a0de201b74047f20a28540ad7dbc0234", "simhash": "1:8dc7e813ea043714", "word_count": 1367 }, "last_updated": "2023-07-14T16:51:02.884412+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WinboRNe, C.J., not sitting." ], "parties": [ "NICHOLAS A. WALKER v. CARL O. STORY." ], "opinions": [ { "text": "Bobbitt, J.\nThe sole question presented on this appeal is whether the court erred in sustaining defendant\u2019s plea of res judicata and in dismissing the action on that ground.\nThe complaint in plaintiff\u2019s prior action against defendant contains substantially the same allegations set forth in the complaint in the present action; and, apart from the plea of res judicata, defendant\u2019s allegations in the two actions are substantially the same.\nAt the trial of the prior action, the court, on defendant\u2019s motion, entered judgment of involuntary nonsuit at the conclusion of plaintiff\u2019s evidence. On plaintiff\u2019s appeal therefrom, this judgment was affirmed on the ground the evidence offered by plaintiff was insufficient to establish his alleged title and right to possession. Walker v. Story, 253 N.C. 59, 116 S.E. 2d 147.\nA motion for judgment of nonsuit under G.S. 1-183 is a demurrer to the evidence. McIntosh, North Carolina Practice and Procedure, \u00a7 565; Lewis v. Shaver, 236 N.C. 510, 512, 73 S.E. 2d 320, and cases cited. It presents a question of law, namely, whether the evidence, when considered in the light most favorable to plaintiff, is sufficient to carry the case to the jury and to support a recovery. Ward v. Smith, 223 N.C. 141, 25 S.E. 2d 463.\n\u201cIt is the duty of the court to allow the motion in either of two events: first, when all of the evidence fails to establish a right of action on the part of plaintiff; second, when it affirmatively appears from the evidence as a matter of law that plaintiff is not entitled to recover.\u201d Jenkins v. Fowler, 247 N.C. 111, 115, 100 S.E. 2d 234, and cases cited.\nWhere the insufficiency of plaintiff\u2019s evidence is the ground on which the court sustains a demurrer to the evidence and enters a judgment of involuntary nonsuit, the plaintiff is permitted to institute a new action and therein offer additional evidence to overcome such deficiency. If, upon the trial of the new action, \u201cit appears to the trial court, and is found by such court as a fact, that the second suit is based upon substantially identical allegation and substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res adjudicata, and thus end that particular litigation.\u201d (Our italics) Hampton v. Spinning Company, 198 N.C. 235, 240, 151 S.E. 266; Kelly v. Kelly, 241 N.C. 146, 84 S.E. 2d 809, and cases cited; McDevitt v. Chandler, 241 N.C. 677, 679, 86 S.E. 2d 438, and cases cited; Pemberton v. Lewis, 243 N.C. 188, 90 S.E. 2d 245.\nThese well established legal principles are fully recognized in Hayes v. Ricard, 251 N.C. 485, 491, 112 S.E. 2d 123. There, in the hearing on defendants\u2019 plea of res judicata, evidence was offered by plaintiffs and by defendants; and, based on the court\u2019s findings, it was held that the judgment of involuntary nonsuit entered in the former action \u201cwas an adjudication upon the merits of the action, for that plaintiffs\u2019 evidence showed affirmatively that defendant Ricard had a better title to the land from a common source, and that they are not entitled to recover, which was her (defendant\u2019s) defense.\u201d\nReference is made in Hayes v. Ricard, supra, to the well established rule that \u201c(a) judgment rendered in an action estops the parties and their privies as to ail issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.\u201d Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 822. But this rule is applicable where, as held in Hayes v. Ricard, supra, the judgment in the prior action constitutes an adjudication thereof upon the merits, not to a judgment of involuntary nonsuit entered on account of the insufficiency of plaintiff\u2019s evidence. Kelly v. Kelly, supra, p. 150.\nNo question relating to the statute of limitations is now presented. Whether plaintiff seeks to invoke the provisions of G.S. 1-25 does not appear. The complaint makes no reference to the prior action. In this connection, it is noted: \u201cThe statute (now G.S. 1-25) allowing actions to be brought within a year after judgment of nonsuit, was intended to extend the period of limitation, but not to abridge it.\u201d Keener v. Goodson, 89 N.C. 273; McIntosh, North Carolina Practice and Procedure, \u00a7 125, and cases cited. See also, Bradshaw v. Bank, 172 N.C. 632, 90 S.E. 789; Rankin v. Oates, 183 N.C. 517, 112 S.E. 32; Sexton v. Farrington, 185 N.C. 339, 117 S.E. 172.\nWhether the judgment in the prior action is a bar to the present action depends upon whether the evidence presented by plaintiff herein is substantially the same as that offered by plaintiff upon trial of the prior action. \u201cA plea of res judicata cannot be determined on the pleadings alone, but only after the evidence is presented.\u201d Hall v. Carroll, 253 N.C. 220, 116 S.E. 2d 459; Hayes v. Ricard, supra. Here, neither the evidence offered at the trial of the prior action nor the evidence plaintiff proposes to offer in the present action was before the court. Hence, the judgment of the court below was entered prematurely and must be reversed.\nReversed.\nWinboRNe, C.J., not sitting.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "W. Y. Wilkins, Jr., for plaintiff appellant.", "Jones & Jones for defendant appellee." ], "corrections": "", "head_matter": "NICHOLAS A. WALKER v. CARL O. STORY.\n(Filed 28 February, 1962.)\n1. Trial \u00a7 19\u2014\nA motion for judgment of nonsuit is a demurrer to tbe evidence and presents tbe legal question wbetber tbe evidence, considered in tbe light most favorable to plaintiff, is sufficient to be submitted to tbe jury upon tbe issue; judgment of nonsuit is also proper if it affirmatively appears from tbe evidence as a matter of law that plaintiff is not entitled to recover.\n2. Judgments \u00a7 33\u2014\nA judgment of involuntary nonsuit for tbe insufficiency of evidence is res judicata and bars a subsequent action if the allegations and evidence in tbe subsequent action are substantially identical with those of -the first.\n3. Judgments \u00a7 38\u2014\nSince a judgment of involuntary nonsuit for tbe insufficiency of tbe evidence bars a subsequent action on tbe same cause only if tbe allegations and evidence in tbe second action are substantially identical with those of tbe first, tbe plea of res judicata in tbe second action is improperly sustained upon consideration of the pleadings alone without tbe introduction of evidence.\n4. Limitation of Actions \u00a7 12\u2014\nTbe statutory provision allowing a second action to be brought within a year after judgment of nonsuit extends tbe period of limitation but does not abridge it.\nWixborke, C.J., not sitting.\nAppeal by plaintiff from Campbell, J., August 31, 1961 Regular Term of Pole.\nThis action was instituted June 26, 1961.\nThe complaint alleges plaintiff is the owner of a described tract of land; that defendant claims an interest therein adverse to plaintiff, which claim constitutes a cloud on plaintiff\u2019s title; and that plaintiff is entitled to have the cloud so created removed. Answering, defendant denied plaintiff owned the land; and, as a further defense, alleged his ownership and rightful possession thereof.\nAs a separate further defense, defendant pleaded, as res judicata, a judgment of involuntary nonsuit entered June 7, 1960, at the conclusion of plaintiff\u2019s evidence, in the trial of a prior action by plaintiff against defendant, which, on plaintiff\u2019s appeal, was affirmed by this Court.\nOn defendant\u2019s motion, the cause was heard on defendant\u2019s plea of res judicata. It was stipulated that the complaint, answer and judgment in the prior action were as set forth in the copies attached to defendant\u2019s answer. No other evidence was offered.\nThe court found as a fact that plaintiff could have presented in the prior action \u201cany and all evidence to establish his title to the premises in question that the plaintiff could offer and establish in the present cause\u201d; and, based expressly on Hayes v. Bicard, 251 N.C. 485, 112 S.E. 2d 123, entered judgment sustaining defendant\u2019s plea of res judi-cata and dismissing the action.\nPlaintiff excepted and appealed.\nW. Y. Wilkins, Jr., for plaintiff appellant.\nJones & Jones for defendant appellee." }, "file_name": "0453-01", "first_page_order": 489, "last_page_order": 492 }