{
  "id": 8567262,
  "name": "DEMOS KARROS and GUS HAVELOS v. OTIS TRIANTIS",
  "name_abbreviation": "Karros v. Triantis",
  "decision_date": "1964-11-25",
  "docket_number": "",
  "first_page": "79",
  "last_page": "82",
  "citations": [
    {
      "type": "official",
      "cite": "263 N.C. 79"
    }
  ],
  "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": "82 S.E. 2d 208",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "240 N.C. 473",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8603015
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/240/0473-01"
      ]
    },
    {
      "cite": "81 S.E. 2d 409",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "240 N.C. 187",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8596364
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/240/0187-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:a5cb1cfd15c1f712",
    "word_count": 1442
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  "last_updated": "2023-07-14T15:44:48.035422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DEMOS KARROS and GUS HAVELOS v. OTIS TRIANTIS."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nThis is the second action instituted by plaintiffs to set aside the judgment entered by McKinnon, J., at November Term 1960. The first was instituted March 8, 1962, after plaintiffs, in January 1962, had acquired knowledge that the court in Greece, on December 19, 1961, had modified its prior judgment of May 22, 1959. The judgment of Clark, J., entered therein on October 8, 1962, sustained defendant\u2019s demurrer, allowed defendant\u2019s plea of res judicata and dismissed the action. If erroneous, the said judgment of Clark, J;, could be corrected only by this Court on appeal. Mills v. Richardson, 240 N.C. 187, 81 S.E. 2d 409. Plaintiffs did not see fit to perfect their appeal. Since said judgment of Clark, J., constitutes a bar to this action and supports Judge Hobgood\u2019s judgment herein, it is unnecessary to consider other grounds for affirmance of Judge Hobgood\u2019s judgment.\nIt is noted: Unless the fact that the judgment entered May 22, 1959, in the court in Greece, was modified by the judgment entered therein on December 19, 1961, is so considered, plaintiffs\u2019 allegations herein do not specify any ground on which they seek to set aside the judgment entered by McKinnon, J., at November Term, 1960.\nThe only exception appearing in the record is an exception to the judgment. This presents only the face of the record proper for inspection and review. Moore v. Crosswell, 240 N.C. 473, 82 S.E. 2d 208. No error appears thereon. Indeed, the record proper, the stipulated facts and the judgment of Clark, J., affirmatively support Judge Hobgood\u2019s judgment.\nAffirmed.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Morris & Hinsdale for \u25a0plaintiff appellants.",
      "John D. Xanthos and R. L. McMillan for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "DEMOS KARROS and GUS HAVELOS v. OTIS TRIANTIS.\n(Filed 25 November, 1964.)\n1. Judgments \u00a7 38\u2014\nA judgment dismissing an action instituted to set aside a former judgment is res judicata and bars a subsequent action between tbe parties to set aside the judgment, tbe remedy if tbe judgment of dismissal was erroneous being solely by appeal.\n3. Appeal and -Error \u00a7 31\u2014\nA sole exception to tbe judgment presents only tbe face of tbe record proper for review.\nAppeal by plaintiffs from Hobgood, J., April 1964 Session of Ware. In this action, which was instituted October 7, 1963, plaintiffs pray \u201cthat the judgment rendered by McKinnon, J., at the November Term 1960, of Wake Superior Court be set aside and a new trial ordered.\u201d Defendant demurred to the complaint on the ground it appears therefrom that the issues attempted to be raised herein \u201chave heretofore been determined and adjudicated.\u201d\nDefendant\u2019s demurrer was in substance a plea of res judicata; and the record indicates the hearing below was on facts alleged in the complaint and stipulated facts. The relevant facts are summarized below.\nOn November 1, 1956, Triantis (defendant herein) instituted an action against Karros and Havelos (plaintiffs herein); and, after trial of said action before McKinnon, J., and a jury, at November Term 1960, of Wake Superior Court, Triantis recovered a judgment against Karros and Havelos, jointly and severally, for $1,800.00 plus interest and costs. The action was to disaffirm a sale by Triantis to Karros and Havelos of a restaurant or an interest therein. The verdict included a jury determination that \u201cthe plaintiff (was) under the age of 21 years at the time of entering into agreements with the defendants and accepting payments thereunder, as alleged in the Complaint.\u201d\nIn the trial of said action, Triantis introduced evidence tending to show he was born on May 21, 1935. He so testified. He offered evidence \u201cthat the plaintiff\u2019s naturalization papers and insurance papers and war service papers showed his birthday at May 21, 1935.\u201d Too, he \u201cproduced a judgment\u201d of a court of Greece entered May 22, 1959, to the effect he was born on May 21, 1935. Karros and Havelos \u201chad no notice of this action in Greece.\u201d They contended Triantis \u201cwas born on the 2nd day of January, 1935, and was Christened on the 18th day of the same month, but did not have proof of that fact other than oral testimony.\u201d\nIn his complaint in said action, plaintiff admitted \u201che had received on the purchase price\u201d the sum of $500.00 on March 1, 1956, and $100.00 on May 15, 1956. Karros and Havelos then alleged and now allege that Triantis accepted these payments after he had reached the age of 21 years and thereby ratified his contract with them.\nKarros and Havelos gave notice of appeal from said judgment of McKinnon, J., but did not perfect an appeal therefrom.\nIn December, 1960, Karros and Havelos instituted an action \u201cin the appropriate Court of Greece\u201d to determine the true date of the birth of Triantis. Karros and Havelos and also Triantis were represented by counsel in said action. In said action, on the 19th day of December, 1961, \u201cthe said Court in Greece entered a judgment setting aside the judgment that Otis Triantis was bom on the 21st day of May, 1935, and finding on the contrary that he was born on the 2nd day of January, 1935, and was christened on the 18th day of the same month.\u201d (Note: The judgment of December 19, 1961, contains this provision: \u201cVI. Whereas, both parties in the present instance had reasonable doubts on the outcome of the suit, as it appears from the evidence produced by them, the judicial costs must be set off in part (art. 211, paragraph 2, of the Civil Procedure Law).\u201d)\nOn March 8, 1962, Karros and Havelos instituted an action against Triantis in Wake Superior Court to set aside the said judgment entered by McKinnon, J., at November Term, 1960, on the ground \u201csaid judgment had been procured by the false and fraudulent testimony of . . . Triantis.\u201d At October Term, 1962, a judgment dated October 8, 1962, entered by Clark (Hern\u00e1n R.), J., upheld defendant\u2019s demurrer to complaint, allowed defendant\u2019s plea of res judicata and dismissed the action. Notice of appeal was given but the appeal was abandoned.\nThe said judgment of McKinnon, J., is identified as No. D-1284, Judgment Docket 74, page 87; and the said judgment of Clark, J., is identified as No. D-4830, Judgment Docket 78, page 172.\nThe said judgment of October 8, 1962, entered by Clark, J., is worded as follows:\n\u201cTHIS CAUSE duly and regularly came on to be heard and it was heard at this the First October, 1962, Regular Civil Term of this Court by and before the undersigned Presiding Judge upon the defendant\u2019s demurrer to the complaint and motion to dismiss this cause and plea of res adjudicata because of an action in this Court entitled \u2018Otis Triantis v. Demos Karros and Giis Havelos,\u2019 No. D-1284, judgment in which action was duly entered sometime ago in Judgment Docket 74, Page 87, in the office of the Clerk of this Court; and it appearing to the Court, and this the Court so finds, that the parties in this cause and the parties in said other cause are the same and that the circumstances and the controversy of the two causes are the same, after hearing arguments of counsel for the plaintiffs and counsel for the defendant, it is, upon due consideration, ORDERED that the defendant\u2019s demurrer be, and it is hereby sustained; and it is further ORDERED that the defendant\u2019s motion to dismiss this action be, and the same is hereby, sustained; and it is found by the Court that the defendant\u2019s plea of res adjudicata because of said other action and judgment therein is proper; and it is further ORDERED that said plea be, and it is hereby, allowed:\n\u201cNOW, THEREFORE, in consideration of the premises, it is ORDERED, ADJUDGED and DECREED that this action be, and the same is hereby, dismissed, the costs hereof to be paid by the plaintiffs.\u201d\nThe judgment entered by Judge Hobgood in this action on May 25, 1964, after recitals, concludes:\n\u201cAnd after hearing argument of counsel for the plaintiffs and counsel for the defendant it is, upon due consideration,\n\u201cORDERED that said demurrer be, and the same is hereby, sustained, and it is further ORDERED, ADJUDGED and DECREED upon the finding by the Court that said other judgment entered in Judgment Docket 74 at page 87 in the office of the Clerk of this Court, No. D-1284, and the judgment entered as aforesaid in Judgment Docket 78 at page 172 in the office of the Clerk of this Court, No. D-4830, constitute and each of them constitutes res judicata for the above-entitled action, that this action be, and the same is hereby, dismissed at the cost of the plaintiffs.\u201d\nPlaintiffs excepted and appealed.\nMorris & Hinsdale for \u25a0plaintiff appellants.\nJohn D. Xanthos and R. L. McMillan for defendant appellee."
  },
  "file_name": "0079-01",
  "first_page_order": 117,
  "last_page_order": 120
}