Law v. . Cleveland

Clarkson, J. The litigants on both sides of the controversy have submitted long, carefully prepared and interesting briefs, but we see no new or novel proposition of law involved in the action. We think the court below made no error in dismissing plaintiff’s action and in rendering judgment for defendant as therein set forth. The two principal questions involved: 1. Hid the judgment overruling defendant’s demurrer, which was made on the fact that the complaint did not state a cause of action, preclude defendant from raising the same question on motion for judgment of nonsuit? We think not on the facts and circumstances of this case. The judgment overruling defendant’s demurrer was merely interlocutory in nature; the defendant still had the right to answer over. N. C. Code, 1935 (Michie), sec. 515. The precise point was passed upon in Baker v. Garris, 108 N. C., 218 (226-7), where it was said: “In view of the repeated decisions of this Court that a motion to dismiss upon the grounds mentioned cannot be waived and may be taken at any time, *293 we cannot give the effect contended for to such a merely interlocutory ruling as in this case.” To the same effect is McIntosh, N. 0. Prac. & Proc., part sec. 454, pp. 469-70, as follows: “Where the defendant demurred to the plaintiff’s cause of action, and upon appeal from a judgment overruling the demurrer the judgment was sustained, the defendant is estopped to raise the same objection on a second appeal from a final judgment rendered in the action; but where the defendant demurs to the plaintiff’s complaint upon the merits, as for want of jurisdiction or failure to state a cause of action, and the demurrer is overruled, he may appeal to the Supreme Court, or he may answer the complaint and on appeal from a final judgment against him raise the question by a motion to dismiss.” These authorities are determinative of the point; even though the trial court, upon the demurrer, has held that the complaint states a cause of action, this question may again be raised, as in this case, by motion for judgment to dismiss. 2. Does the South Carolina judgment bar plaintiff’s cause of action and entitle defendant to judgment? We think so. The notes made by plaintiff to defendant, secured by mortgage on real estate in Tryon, Polk County, N. C., were executed and delivered in South Carolina. Both plaintiff and defendant are residents of South Carolina. Personal service was had in the South Carolina action. Plaintiff’s land, securing these notes, is in Tryon (Polk County), N. C. These notes bore 8 per cent interest, which is the legal rate in South Carolina; the legal rate in North Carolina is 6 per cent. In the South Carolina action there was no suggestion made by plaintiff when he was sued by Cleveland as to any taint of usury in the transaction. The present action was commenced in this State by plaintiff against defendant to recover usury. In this action the plaintiff prays judgment against the defendant: “For an accounting. That on account of the usurious interest demanded, charged and collected, all interest on the notes described in the complaint be forfeited, and for a recovery of double the amount of the usurious interest paid. For the right to redeem the property described in the deed recorded in Book 67, page 276, Polk County registry, upon payment of any indebtedness shown by said accounting to be due, and to have the mortgage recorded in Book 32, page 21, Polk County registry, duly cancelled of record upon the payment of said amount. For an attachment against sufficient of the property of the defendant in North Carolina to satisfy plaintiff’s claim. For the costs of this action. For such other and further relief as is just and equitable.” Among other defenses the defendant says: “That said judgment is in all respects a valid and binding judgment, and that as such is entitled under Art. I, sec. 4, of the Constitution of the United States, to be *294 given full faith and credit by the courts of the State of North Carolina. That although defendant has demanded of plaintiff that he pay said judgment, the plaintiff has failed, neglected, and refuses to pay the same or any part thereof. Defendant prays: That plaintiff’s action be dismissed and that plaintiff take nothing by his action. That defendant have and recover of plaintiff the sum of $8,114.28' plus interest thereon from 15 July, 1935, until paid. For the costs of this action, and for such other and further relief as to the court might seem just and proper in the premises.” Under the consent judgment Law conveyed to Cleveland the land in Tryon, N. 0., on which he had given Cleveland a mortgage and made other adjustments. In the South Carolina ‘Decree and Order for Judgment” is the following: “It appears now that plaintiff and defendant have reconciled their differences and have amicably settled their controversy,” etc. "We think it too well settled to cite authorities that the South Carolina court had jurisdiction of the parties and the subject of the action. The questions at issue in the present case are the same questions which were at issue in the South Carolina case, and which were determined in and adjudicated hy the South Carolina court. The South Carolina judgment settled these questions and they could not again he litigated in South Carolina unless the “Decree and Order for Judgment” be set aside for fraud or mutual mistake. Therefore we are of the opinion that, under the full faith and credit clause of the Constitution of the United States, these questions cannot be relitigated in North Carolina. It is well settled that a consent judgment is just as valid and binding as a judgment rendered after the trial of a cause. LaLonde v. Hubbard, 202 N. C., 771. The full faith and credit clause was recently stated by Devin, J., in Dansby v. Ins. Co., 209 N. C., 127 (129-130), as follows: “The only question presented by this appeal is whether the service of the original process in the manner set forth in the Mississippi judgment was a valid service under the laws of the state of Mississippi. The validity and affect of a judgment of another state must be determined hy reference to the laws of the state where rendered. Art. IY, sec. 1, of the Constitution of the United States, commands that full faith and credit shall be given in each state to the judicial proceedings of every other state. And the acts of the Congress enacted in the exercise of the power thus granted specifically directs that judgments ‘shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.’ Milwaukee County v. White Co., opinion hy Mr. Justice Stone, U. S. Supreme Court Advance Opinions, Vol. 80, p. 155 (9 Dec., 1935) ; *295 34 C. J., 1128. When such judgment is made the basis of an action, it is conclusive on the merits in every other state if it appear that the court in which it was rendered had jurisdiction of the parties and the subject matter. Morris v. Burgess, 116 N. C., 40; 2 Black on Judgments, sec. 857. Recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction. Milwaukee Co. v. White Co., supra. Or for fraud in its procurement.” On account of the deflated conditions of the times the strict enforcement by defendant of his legal rights against plaintiff seems to be hard measure. We do not make, but construe contracts. For the reasons given, the judgment of the court below is Affirmed.