Steward v. . Register

Merrimox, C. J. after stating the facts : The special proceeding relied upon by the defendants does not, in any view of it, constitute an estoppel of record upon the plaintiffs in this action, for the plain reason that that proceeding was never determined upon the merits thereof by any final judgment therein. See Powell v. Morisey, 98 N. C., 426. This Court directed the judgment therein appealed from to be reversed, but no entry of reversal was ever made. Indeed, it appears that when the decision of this Court was certified to the Superior Court, the later Court at once allowed the plaintiffs to “withdraw their action or special proceeding, because the same was prematurely begun,” and allowed the defendants therein “to withdraw their counterclaim.” Thus the proceeding was, in legal effect, dismissed, abandoned, *591 by common consent of the parties, before the litigation was completed. There was no settlement of the rights of the parties, nor any judgment concluding the latter in any respect. The plaintiffs withdrew the matter of their proceedings, and the defendants did likewise, with the sanction of the Court. It so appears of record. Nothing appears by the latter to estop the parties in this action ox elsewhere. To create an estoppel by a former judgment it must appear that the matter, claim, or demand in litigation has been tried and determined in a former action or proceeding, and the identity in effect of the present and former cause of litigation must appear. Temple v. Williams, 91 N. C., 82. The defendants objected to the deposition read in evidence on the trial, on the ground that it “had not been regularly taken in this action, and no proceeding in law or equity had been taken to make” the same competent. These objections are clearly not tenable. It was not necessary that the deposition should be taken in this action. It is sufficient if it -was taken in another action or proceeding between the same parties in relation to the same subject-matter, or cause of action, or involves the same material questions, and the adverse party had opportunity to cross-examine the wdtness. Bryan v. Malloy, 90 N. C., 508; 1 Greenleaf Ev., 553; Taylor on Ev., §434. Nor was it necessary that any proceeding-should be taken in a Court of law or equity to render it competent as evidence in this action. It was sufficient to take it from the files to which it properly belonged and introduce it on the trial, properly identifying it with the former action. It could not be changed, modified or amended; it, as it appeared on file, was sufficient or insufficient, competent or incompetent. Why, therefore, should any proceeding be taken in Court to render it competent? Any proper objection might have been made to it at the time it was put in evidenee. It might have been objected that it was not taken in another action between the parties, or that it was *592 taken in respect to a different matter or cause of action; it might have been objected further that it was in no way materiál in the former action. The material parts of the record in the former action should have accompanied and been introduced with it to show its pertinency or competency in this action. Indeed, it seems that such record was so introduced. It does not appear from the record that any such objections as those just suggested were made in the Court below. If there were such, and the defendants intended to avail themselves of them here, they should have had the objection noted in the record, and if the Court failed to sustain the same they should have assigned error. The exceptions made did not raise any such questions. •The defendants’ counsel,on the argument before us,insisted that several of the parties to the former action are not parties to the present one, and that several of the parties to the present one were not parties to the former one. But no such objection appears from the record to have been made in the Court below. No error is assigned in such respect. Moreover, there is no pertinent data by which we can see who of the present action -were or were not of the former action. Nor can we see by the record who of the present action are in privity with parties to the former action. The judgment, therefore, must be affirmed. Judgment affirmed.