{ "id": 8564415, "name": "WALTER ARNELL WEST v. G. D. REDDICK, INC.", "name_abbreviation": "West v. G. D. Reddick, Inc.", "decision_date": "1981-02-02", "docket_number": "No. 125", "first_page": "201", "last_page": "206", "citations": [ { "type": "official", "cite": "302 N.C. 201" } ], "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": "245 S.E. 2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555701 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0778-01" ] }, { "cite": "198 S.E. 2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553310 ], "year": 1973, "pin_cites": [ { "page": "355-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0352-01" ] }, { "cite": "326 Mo. 1006", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8737148 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/mo/326/1006-01" ] }, { "cite": "116 S.E. 2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "724" } ], "opinion_index": 0 }, { "cite": "253 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624061 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0231-01" ] }, { "cite": "134 S.E. 2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573303 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0353-01" ] }, { "cite": "38 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554031 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc-app/38/0370-01" ] }, { "cite": "103 S.E. 2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624484 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0485-01" ] }, { "cite": "81 S.E. 2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595732 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0143-01" ] }, { "cite": "90 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "243 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624921 ], "year": 1956, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0355-01" ] }, { "cite": "92 S.E. 2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 775", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627300 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0775-01" ] }, { "cite": "103 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622366 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0294-01" ] }, { "cite": "132 S.E. 2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574801 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0359-01" ] } ], "analysis": { "cardinality": 653, "char_count": 12959, "ocr_confidence": 0.759, "pagerank": { "raw": 4.600674314619232e-07, "percentile": 0.9259171094530994 }, "sha256": "f976b828e3f7c7ebe97c8e7b93510ab93ea7af6da5655f50e34959b98a806f42", "simhash": "1:bb06e6db1205075c", "word_count": 2216 }, "last_updated": "2023-07-14T17:25:15.704346+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Meyer did not participate in the consideration or decision of this case." ], "parties": [ "WALTER ARNELL WEST v. G. D. REDDICK, INC." ], "opinions": [ { "text": "BRANCH, Chief Justice.\nThe threshold question presented by this appeal is whether we may judicially notice facts not appearing in the record in this case but which appear in a published opinion of the Court of Appeals. We note initially that the record does not disclose any statement concerning an appeal from the order dismissing the original action. Nevertheless, both parties argued, as the sole issue in their briefs in the Court of Appeals, the issue of whether the one-year period of limitation granted by Rule 41(a)(2) for reinstitution of the dismissed action began to run at the time of the order of dismissal or at the time of final appellate action. The Court of Appeals held that it could not consider the effect of defendant\u2019s appeal in the prior action or the appellate disposition of that appeal because there is nothing in the record of this action showing that any prior appeal was, in fact, taken.\nThis Court has long recognized that a court may take judicial notice of its own records in another interrelated proceeding where the parties are the same, the issues are the same and the interrelated case is referred to in the case under consideration. State v. Patton, 260 N.C. 359, 132 S.E. 2d 891 (1963); Bizzell v. Ins. Co., 248 N.C. 294, 103 S.E. 2d 348 (1958); State v. McMilliam, 243 N.C. 775, 92 S.E. 2d 205 (1956). Here however, we are not being asked to take judicial notice of our records. Nevertheless, generally a judge or a court may take judicial notice of a fact which is either so notoriously true as not to be the subject of reasonable dispute or is capable of demonstration by readily acce ssible sources of indisputable accuracy. Kennedy v. Parrott, 243 N.C. 355, 90 S.E. 2d 754 (1956) (emphasis added); Hopkins v. Comer, 240 N.C. 143, 81 S.E. 2d 368 (1954); see also 29 Am. Jur. 2d, \u201cEvidence,\u201d \u00a7 25 (1967). \u201cThe device of judicial notice is available to an appellate court, and is employed not only in the course of a trial but also on any occasion where the existence of a particular fact is important, as in determining the sufficiency of a pleading . ...\u201d 1 Stansbury\u2019s North Carolina Evidence \u00a7 11 (Brandis rev. 1973).\nIn fact, this Court has, on at least one occasion, examined facts appearing in a published opinion of a federal court. In State v. Cooke, 248 N.C. 485, 103 S.E. 2d 846 (1958), defendants asked the trial court to take judicial notice of a civil action in the United States District Court involving the same matter. The trial court declined. This Court affirmed, noting without elaboration that its knowledge of the facts in the civil case was \u201climited to what appears in the published opinion.\u201d Id. at 493, 103 S.E. 2d at 852. Although the Court examined the published opinion it apparently rested its holding on the fact that its examination of the published opinion did not disclose sufficient facts to support the defense which defendants sought to interpose.\nThe facts that plaintiff would have us judicially notice are contained in a published report of the North Carolina Court of Appeals. That court and our Court constitute the appellate division of the General Court of Justice. At oral argument before us, counsel for defendant admitted that the case reported in 38 N.C. App. 370 was the same case which was dismissed without prejudice on 15 September 1977.\nWe conclude that the matter which we are asked to judicially note, the published opinion of the North Carolina Court of Appeals at 38 N.C. App. 370, is a \u201creadily accessible source of indisputable accuracy.\u201d We, therefore, take judicial notice of that opinion. Our examination of that opinion reveals that defendant appealed from the 15 September 1977 order and that the opinion of the Court of Appeals was filed on 17 October 1978.\nWe are cognizant of the holding in Whitford v. Whitford, 261 N.C. 353, 134 S.E. 2d 635 (1964). In that case, defendant was found guilty of willful contempt because of his failure to comply with the court\u2019s order for child support. The court rejected defendant\u2019s argument that the North Carolina court should take judicial notice of an unauthenticated divorce decree of a Florida court. There was nothing before the North Carolina court to show that the Florida court had jurisdiction to decree a divorce, award custody, or fix support payments. Neither was there any showing that the Florida court was informed that the North Carolina court had already awarded child custody and fixed the support payments to be paid by defendant. The facts in Whitford are easily distinguishable from the facts before us. In Whitford the Court was asked to judicially note a record or decree of a trial court of a foreign jurisdiction.\nHaving decided that we are not restricted to the record in this case, we move to the merits of the appeal. We must now decide whether the one-year period to reinstitute a claim dismissed under Rule 41(a)(2) runs from the date of the taking of the dismissal in the trial court or from the date of the appellate court\u2019s mandate.\nRule 41(a)(2) provides, inter alia:\nIf an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless the judge shall specify in his order a shorter time.\nDefendant contends that the time for refiling began to run upon entry of Judge Kivett\u2019s order dismissing the original action, and therefore the present action is barred by the applicable three-year statute of limitations and by the one-year limitation set out in Rule 41(a)(2). On the other hand, plaintiff contends that defendant\u2019s action in taking an appeal from the dismissal order tolled the running of the one-year limitation until final appellate action was taken, and therefore this action was not barred by the passage of time.\nPlaintiff relies heavily on our decision in Rowland v. Beau champ, 253 N.C. 231, 116 S.E. 2d 720 (1960), in which we considered G.S. 1-25 (repealed by 1967 N.C. Sess. Laws c. 954, s. 4, effective 1 January 1970). That statute provided as follows:\nIf an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited'... the plaintiff... may commence a new action within one year after such nonsuit....\nThe Court in Rowland considered whether the one-year period to refile ran from the date of a General County Court nonsuit of plaintiffs\u2019 action or from the date of dismissal of plaintiffs\u2019 appeal in the Superior Court. We held that the date of dismissal in the Superior Court was the correct date from which time would begin to run. We said, \u201cWhen a judgment of nonsuit has been appealed from, the nonsuit does not become final, in the sense that it ends the lawsuit, until the appeal.. .has been disposed of_\u201dId. at 237, 116 S.E. 2d at 724, quoting Adams v. St. Louis - San Francisco Railway, 326 Mo. 1006, 33 S.W. 2d 944 (1930). Plaintiff argues that since Rule 41(a)(2) is similar to former G.S. 1-25 the Court should interpret the one-year period in Rule 41(a)(2) consistent with its interpretation of G.S. 1-25 in Rowland.\nDefendant, on the other hand, contends that the language of the rule is clear and that by its express terms plaintiff\u2019s action is barred. We disagree. It is generally recognized that, \u201cthe opinion of the writers at the time of the adoption of Rule 41 [was] that the provisions of that rule follow G.S. 1-25, and the wording of the rule would so indicate.\u201d Whitehurst v. Virginia Dare Transportation Co., 19 N.C. App. 352, 355-56, 198 S.E. 2d 741, 743 (1973). See McIntosh, N. C. Practice and Procedure \u00a7 1647 (Phillips Supp. 1970); Sizemore, General Scope and Philosphy of the New Rules, 5 Wake Forest Intra. L. Rev. 1,30(1969); Smith, Trial Under the New Rules, 5 Wake Forest Intra. L. Rev. 138,146 (1969). Under Rowland v. Beauchamp, supra, final dismissal, when a voluntary dismissal is appealed, does not take place until after appellate action. Therefore, we hold consistently v/ith Rowland that the use of \u201cdismissal\u201d in Rule 41(a)(2) refers to the ultimate dismissal which occurs only after final appellate action.\nDefendant relies primarily on the case of Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp., 36 N.C. App. 778, 245 S.E. 2d 234 (1978), in which the court stated, \u201cthe statute of limitations was not tolled by the appeal undertaken by defendant . . . .\u201d Id. at 781, 245 S.E. 2d at 236. An examination of the facts of that case, however, shows that it is inapposite to the one before us. In Ready Mix, the plaintiff filed an action but failed properly to serve defendant with process. The plaintiff obtained a default judgment when defendant did not answer. Defendant later moved to set aside the-judgment on grounds of improper service of process. The trial court found against defendant, but the Court of Appeals reversed the trial court and found service improper. At some time between plaintiffs acquisition of the default judgment and the Court of Appeals\u2019 decision overturning the judgment, the three-year statute of limitations had run on the claim. Thereafter, plaintiff obtained proper service on defendant and argued that the claim survived because the defendant\u2019s first appeal tolled the statute of limitations. The case again reached the Court of Appeals. It held that the first appeal did not toll the statute of limitations because there was no proper service in the original lawsuit. In instant case, however, plaintiff does not seek to revive a claim already barred by the statute of limitations.\nDefendant contends that a decision to start the one-year period from the date of final appellate action will fail in practice because no specific date can be fixed to mark the beginning of the one-year period. Under Rule 32 of the Rules of Appellate Procedure, the mandate of the appellate court \u201cconsists of certified copies of its judgment and of its opinion ....\u201d Unless a court otherwise directs, the mandate must be issued twenty days after the written opinion is filed with the clerk. App. R. 32(b).\nIn the case before us, the Court of Appeals filed its opinion on 17 October 1978. Thus, pursuant to Rule 32, the mandate of the Court of Appeals would have had to issue on 6 November 1978. Plaintiff reinstituted his action on 28 November 1978, well within the one-year period set forth in Rule 41(a)(2).\nThe decision of the Court of Appeals is reversed, and the cause is remanded to that court with direction that it be remanded to the District Court, Wilkes County, for proceedings in accordance with this opinion.\nReversed and remanded.\nJustice Meyer did not participate in the consideration or decision of this case.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "Vannoy, Moore and Colvard by J. Gary Vannoy and Michael E. Helms, for plaintiff.", "Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and Keith W. Vaughan, for defendant." ], "corrections": "", "head_matter": "WALTER ARNELL WEST v. G. D. REDDICK, INC.\nNo. 125\n(Filed 2 February 1981)\n1. Appeal and Error \u00a7 5.1\u2014 judicial notice of opinion of Court of Appeals\nThe Supreme Court could take judicial notice of facts not appearing in the record in this case but which appeared in a published opinion by the Court of Appeals.\n2. Limitation of Actions \u00a7 12.1; Rules of Civil Procedure \u00a7 41.1'\u2014 voluntary dismissal \u2014 appeal \u2014 time from which statute of limitations begins to run\nWhere plaintiff takes a voluntary dismissal under G.S. 1A-1, Rule 41(a)(2) and defendant appeals from that dismissal, plaintiffs one year period to reinsti-tute his claim does not run from the taking of the dismissal in the trial court, but instead runs from the date of final appellate action.\nJustice MEYERdid not participate in the consideration or decision of this case.\nAppeal by plaintiff pursuant to G.S. 7 A-30(2) from decision of the North Carolina Court of Appeals affirming judgment on the pleadings in favor of defendant entered by Kilby, J., on 19 October 1979 in District Court, WILKES County.\nOn 20 July 1976 plaintiff instituted an action for damages for personal injuries which he alleged were suffered by him on 25 July 1974 and which were allegedly proximately caused by the negligence of defendant. On 15 September 1977 Judge Kivett signed an order pursuant to G.S. 41(a)(2) dismissing plaintiffs action without prejudice. On 28 November 1978 plaintiff commenced this action based on the 25 July 1974 accident. Defendant answered on 15 December 1978 and, inter alia, pled the three-year statute of limitations and the failure of plaintiff to reinstitute his action against defendant within one year from the 15 September 1977 order. On 5 March 1979 defendant filed a motion for judgment on the pleadings v/hich was granted by Judge Kilby on 19 October 1979. Plaintiff appealed and the Court of Appeals in an opinion by Judge Martin (Harry C.), Judge Martin (Robert M.) concurring, affirmed Judge Kilby\u2019s judgment. Judge Hedrick dissented and this case is before us as a matter of right pursuant to G.S. 7A-30(2).\nVannoy, Moore and Colvard by J. Gary Vannoy and Michael E. Helms, for plaintiff.\nWomble, Carlyle, Sandridge & Rice by Allan R. Gitter and Keith W. Vaughan, for defendant." }, "file_name": "0201-01", "first_page_order": 233, "last_page_order": 238 }