Yancey v. Watkins

182 S.E.2d 605 (1971)

12 N.C. App. 140

W. T. YANCEY v. Louise H. WATKINS, Widow, Executrix of the Estate of G. B. Watkins, and Individually.

No. 719SC459.

Court of Appeals of North Carolina.

August 4, 1971.

*606 Perry, Kittrell, Blackburn & Blackburn, Henderson, and Royster & Royster, T. S. Royster, Jr., Oxford, by Charles F. Blackburn, Henderson, for plaintiff appellant.

Watkins & Edmundson by R. Gene Edmundson, Oxford, for defendant appellees.

BRITT, Judge.

Plaintiffs contend that defendants' motion for judgment on the pleadings was premature; therefore, the court erred in entering its judgment pursuant to the motion. The point is well taken.

The record discloses: On 18 November 1970, defendants filed a motion for judgment on the pleadings "under Rule 12(c) and Rule 56 of the Rules of Civil Procedure, as amended." On 19 November 1970, defendants filed their answer to the amended complaint, setting forth 12 affirmative defenses including invalidity of the alleged contract, statute of limitations, laches, and res judicata. The judgment appealed from recites that the cause was heard at the regular December 1970 Session of Granville Superior Court but does not indicate the date or dates of the hearing; we take judicial notice of the fact that this session of Granville Superior Court was a one week session, convening on 7 December 1970.

Rule 12(c) provides that "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." (Emphasis added.) At the time defendants moved for judgment on the pleadings, the pleadings were not closed. Defendants had not filed answer. Plaintiff had not had opportunity to file a reply; in fact, the session of court at which the motion was heard convened on the eighteenth day after the answer was filed. We hold that the filing of, and hearing on, the motion for judgment on the pleadings was premature.

Defendants strenuously argue that a former action between the parties (see Yancey v. Watkins, 2 N.C.App. 672, 163 S.E.2d 625 [1968], is res judicata to this action and the trial court so held. We deem it unnecessary to pass on this contention but observe that the proceedings and judgment in the former action were not submitted as evidence at the hearing of this action and were not included in the record on appeal. As to whether this court can take judicial notice of the record on appeal in another action, quaere.

For the reason stated, the judgment appealed from is vacated and this action is remanded for further proceedings consistent with this opinion.

Error and remanded.

MORRIS and PARKER, JJ., concur.