Boucher v. Union Trust Co.

ClaRksojst, J. The question involved in this appeal is as follows: “Does the former judgment entered into between .plaintiff and the defendant Mary Beason, administratrix of J. W. Beason, operate as a bar or estoppel to this action?” We think so under the facts and circumstances of this case. In Gardiner v. May, 172 N. C., 192 (194-5), it is said, citing numerous authorities: “Where parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was ob *381 tained by fraud or mutual mistake, or that consent was not in fact given, wbicb is practically tbe same thing, tbe burden being on tbe party attacking tbe judgment to sbow facts wbicb will entitle bim to relief.” In Distributing Company v. Carraway, 196 N. C., 58 (60), citing authorities, we find: “It is well established by a long line of decisions that when a court of competent jurisdiction renders judgment in a cause properly before it, such judgment estops tbe parties and their privies as to all issuable matters contained in tbe pleadings, including all material and relevant matters within tbe scope of tbe pleadings, wbicb tbe parties, in tbe exercise of reasonable diligence, could and should have brought forward.” The proper procedure to set aside the judgment is by motion in the cause. Cason v. Shute, ante, 195 (196). The plaintiff contends that it does not appear of record that the item $109.72 embraced in this action was in controversy in the first action, but the judgment which is a part of the record was agreed to by the parties and it says: “And the defendants have agreed to pay to the plaintiff the sum of $350.00, together with the court costs, said payment to be in full satisfaction and settlement of all claims against the defendants set out in the complaint, and in full satisfaction and settlement of all claims which now exist or hereafter arise against the estate of J. W. Beason on account of bis acting as administrator c. t. a. of the James Millard estate.” Then again, in finding of fact 7 is the following: “That J. P. Stockton, teller in said bank who cashed the check presented by Mrs. Mary Beason, administratrix of J. ~W. Beason, deceased, was informed that she desired to withdraw said fund in order to complete the settlement which she bad just made with the said Paul Boucher as administrator of the said James Millard estate, and that the fund in question belonged to her as administratrix of J. W. Beason, deceased.” On this record it is found that defendant Mary Beason, administratrix of J. W. Beason, was withdrawing the fund “in order to complete the settlement” and the judgment is explicit that it covers all claims which “now exist or hereafter arise against the estate of J. W. Beason on account of bis acting as administrator c. t. a. of the James Millard estate.” The parties to the judgment were sui juris and the judgment is binding unless set aside as above indicated. the judgment even goes so far as to release the surety upon the bond of J. W. Beason, deceased, as administrator c. t. a. of James Millard. Por tbe reasons given, tbe judgment of tbe court below is Reversed.