Current v. . Webb

DeviN, J. Tbis appeal presents tbe question of tbe validity of tbe service of process upon defendant Cleve Webb, tbe same person referred to in Bangle v. Webb, ante, 423, where, upon substantially tbe same evidence, a ruling as to bis amenability to service under tbe same circumstances was considered and determined. These two cases are companion cases and were argued together in tbis Court. They arose out of tbe same transaction. Both plaintiff’s intestate and tbe plaintiff in tbe Bangle case, supra, were injured at tbe same time and place, while passengers in an automobile driven by defendant Webb. Tbe same acts of negligence on tbe part of Webb and others are alleged. In each case damages are sought against tbe same defendants for tbe same tort. Both tbe motions for quasbal of tbe purported service of summons on defendant Webb, and tbe facts underlying, are practically identical in tbe two cases. Tbe service in botb cases was made by tbe same officer at tbe same time. In tbe Bangle case, supra, substantially tbe same evidence as in tbe instant case was presented to Judge Armstrong, wbo found tbe facts to be tbat at tbe time of tbe attempted service of process on defendant Webb be was a resident of tbe State of Georgia and bad come into North Carolina in obedience to a summons from tbe coroner of Mecklenburg to attend and testify at an inquest, and tbat therefore under tbe statute (sec. 4, cb. 217, Public Laws 1937) be was exempt from service of process in connection with matters which arose before bis entrance into tbe State under tbe summons. Judge Armstrong adjudged tbat tbe purported service was invalid and dismissed tbe action as to defendant Webb. Tbis judgment was entered 29 May, 1941, and upon appeal has been affirmed by tbis Court. Subsequently, at tbe August Term, 1941, of Gaston Superior Court, from substantially tbe same evidence, Judge Nettles found tbe facts to be tbat tbe defendant Cleve Webb was a resident of North Carolina at tbe time of service of process, and tbat be was not exempt from service under tbe statute referred to. Judgment was entered accordingly bold-ing tbe service valid. Thus it appears tbat at tbe time Judge Nettles made bis ruling there was a previous judgment of the Superior Court, now affirmed on appeal, declaring tbat service on defendant Cleve Webb at tbe same time and place and under identical circumstances, growing out of tbe same transaction, was invalid because be was a nonresident of North Carolina and bad come into tbe State in obedience to a subpoena to testify as a witness. We are constrained to bold tbat while there was evidence tending to support tbe ruling of Judge Nettles, tbe facts determined by tbe previous *428 judgment in tbe Bangle 'case, supra, bad become res judicata. Tbe status and residence of tbe defendant Cleve Webb bad become judicially established. His exemption from service of process, at tbe time and place attempted, bad been determined by a competent court. Harshaw v. Harshaw, ante, 145. Tbe application of tbe rule tbat a judgment determining tbe existence of a fact is conclusive upon parties and privies is not necessarily precluded by showing tbat tbe judgment was rendered by a court in another county, or tbat tbe parties are not in all respects identical. “There is no doubt tbat a final judgment or decree necessarily affirming • tbe existence of any fact is conclusive upon tbe parties or their privies, whenever tbe existence of tbat fact is again in issue between them, not only when the subject matter is tbe same, but when tbe point comes incidentally in question in relation to a different matter, in tbe same or any other court.” 2 Freeman on Judgments, sec. 670. “It is not necessary tbat precisely tbe same parties were plaintiffs and defendants in tbe two suits; provided tbe same subject in controversy, between two or more of tbe parties, plaintiffs and defendants in tbe two suits respectively, has been in tbe former suit directly in issue, and decided.” S. v. Continental Coal Co., 117 W. Va., 447, 186 S. E., 119; Wright v. Schick, 134 Ohio St., 193, 121 A. L. R., 890; 30 Am. Jur., 955; Bank v. McCaskill, 174 N. C., 362, 93 S. E., 905; Bank v. Comrs., 116 N. C., 339, 21 S. E., 410; Leary v. Land Bank, 215 N. C., 501, 2 S. E. (2d), 570. Tbe judgment in tbe Bangle case, supra, was rendered upon tbe same preliminary motion as in this case. This motion squarely presented for adjudication tbe status of defendant Webb, whether a resident of Georgia or of North Carolina, whether exempt from tbe service of process under tbe statute, or not. Thus tbe judgment was in tbe nature of a judgment in rem, by a court having jurisdiction not only of tbe parties and of tbe cause of action, but also of tbe res — the power and duty to determine tbe particular fact presented for adjudication. This fact tbe court conclusively established in tbat case. Its judgment as to tbat fact was binding upon tbe parties to tbat suit and upon all those having an interest in tbe subject matter of tbe motion, under tbe maxim res judicata pro veritate accipitur. Herman on Estoppel and Res Judicata, ch. 5; Tart v. Western Maryland R. Co., 289 U. S., 620 (624). While tbe previous adjudication in the Bangle case, supra, of tbe question raised by tbe motion in this case does not appear to have been called to tbe attention of tbe court below, both cases have been brought to this Court and are now before us, and tbe proper disposition of tbe appeal requires consideration of all the determinative factors presented by tbe record. Tbe propriety of this view, in this case, further appears from tbe fact tbat two able judges of tbe Superior Court have reached *429 different conclusions as to tbe validity of tbe purported service on defendant Webb, from substantially tbe same evidence. It was not required, at tbis stage of tbe proceedings and upon a motion to vacate purported service of process, that a previous adjudication of tbe determinative fact of defendant’s exemption from service’ under tbe statute should have been formally pleaded. Krekeler v. Ritter, 62 N. Y., 372, 88 A. L. R., 577. We are of opinion that tbe previous judgment established tbe status of defendant Webb as a nonresident and exempt from service under tbe statute, and that tbis must be held controlling upon tbe subsequent ruling upon tbe same question. It follows that tbe judgment of Judge Nettles must be Reversed.