Annotate this Case

165 S.E.2d 6 (1969)

3 N.C. App. 383

NORFOLK SOUTHERN RAILWAY COMPANY and Martin-Marietta Corporation v. Marvin V. HORTON. NORFOLK SOUTHERN RAILWAY COMPANY and Martin-Marietta Corporation v. J. I. OAKLEY.

No. 683SC367.

Court of Appeals of North Carolina.

January 15, 1969.

*8 James, Speight, Watson & Brewer, by W. H. Watson, Greenville, for Norfolk S. Ry. Co., appellant.

Joyner & Howison, by W. T. Joyner, Jr., Raleigh, for Martin-Marietta Corp., appellant.

H. Horton Rountree, Kenneth G. Hite, Sam O. Worthington, Greenville, E. Burt Aycock, Jr., and Marvin V. Horton, Tarboro, for appellees.

BROCK, Judge.

Plaintiffs assign as error the signing and entry of the judgments of nonsuit in the two cases.

Plaintiffs succinctly state their contention to be that the stipulation entered into at the 23 October 1967 Session provides that "the rulings and judgment rendered" in the two cases tried at that session would be binding on the parties in the other three cases only to the extent that those rulings were applicable to the facts of the other three cases. They contend, therefore, that the facts of all the cases must be compared to determine the extent to which the stipulation is binding in the other three cases. This seems to be another way of saying that the stipulation is binding in the other three cases only to the extent that the facts are the same as in the first two.

Even without knowledge of any of the evidence in any of the five cases, we can readily surmise that the facts in each case are different; they concern different parties, about different conduct, and different sources of title. The construction of the stipulation now sought by plaintiffs would render it inefficacious.

At the 23 October 1967 Session all of the parties in the five lawsuits solemnly agreed "that the rulings and judgment rendered" in the two cases tried at that session "shall be the rulings affecting and applied to" the remaining three cases. At that time all of the parties were aware that the facts of each of the five cases would be *9 different, and plaintiffs are in no position to now complain that the court has held them to their solemn agreement. Stipulations should receive a fair and liberal construction, in harmony with the apparent intention of the parties.

Courts look with favor on stipulations designed to simplify, shorten, or settle litigation and save costs to parties, and such practice is encouraged. Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625.

"As a general rule a stipulation to abide the event of another suit is binding as long as the causes of action remain the same; it operates as a waiver of the right of trial by jury, and forecloses all questions which might have been, but were not, presented in the other case." 83 C.J.S. Stipulations § 19, p. 40.

In Commercial Union Assurance Co. of London v. Chattahoochee Lumber Co., 130 Ga. 191, 60 S.E. 554, plaintiff lumber company sued defendant assurance company on a fire insurance policy. In addition to the policy in suit, there was another policy issued by a different insurance company covering the same property on which the lumber company had brought an action. It was stipulated that the present case would abide the result of the other and that the final result of the other was to be the final result in the present case. Judgment was recovered against the other insurance company for the full amount of the policy. When the case against the present insurance company came on for trial, it was contended by the insurance company that it was bound by the former judgment only to the extent of determining a liability on the policy. It was held that there was no error in the trial court ruling in favor of the plaintiff lumber company for the full amount of the policy in the present suit in view of the stipulation which had been made to abide the result in the other case. See also, Jarrett v. McLaughlin, 123 Ga. 256, 51 S.E. 329.

In North Mo. R. R. Co. v. Stephens, 36 Mo. 150, 88 Am.Dec. 138, several suits were brought by the same plaintiffs against different defendants. The attorneys for the parties agreed that all of the cases should abide the final decision in one case, and it was held that such agreement was binding upon the parties. This was held to be so although the question involved in the case which was tried had been changed by an act of the legislature which might have changed the result in the remaining cases except for the stipulation.

Plaintiffs argue in their brief the principles of res adjudicata in support of their position that the evidence must be compared to determine whether the cases are the same. However, we are not concerned with the application of the principles of res adjudicata; we are concerned with the interpretation of a stipulation.

All five of the cases are concerned with the one basic question: Does the conduct of the corporate parties, or their predecessors in interest, constitute an abandonment of the easements of right of way? It is the resolution of this basic question which would determine whether any of the parties are entitled to the relief prayed in their complaints. Different factual situations would likely develop in each case with respect to the conduct and claims of the individual parties, but it is the conduct of the corporate parties and its effect which is the basic inquiry. The evidence of this, it seems, would be the same in each case. All of the parties were aware of these circumstances at the time of entering into the stipulation, and it was their intention to dispose of all five cases by the trial of two which were representative of the entire controversy. We do not know why Judge Bone entered judgments of nonsuit in the two cases that were tried; those cases are not before us for review, and Judge Bone's judgment is presumed to be correct. Nevertheless, the fact that the two cases were not disposed to the present liking of the corporate plaintiffs does not in any way change the effect of the stipulation.

*10 Under our Rule 27 plaintiffs cite to us as additional authority the cases of The Carso, 2 Cir., 69 F.2d 824, and Huegel v. Huegel, 329 Mo. 571, 46 S.W.2d 157. In Carso the parties stipulated that "the issues" in the present suits "shall be deemed to be controlled by the decision to be rendered" in The Carso, except "the special issues claimed to exist" and "now submitted." Clearly such a stipulation controlled only to the extent that the issues were similar, and the case is distinguishable upon that ground. Huegel was a caveat proceeding alleging undue influence. Another action was pending to set aside a stock transfer on the grounds of undue influence. In Huegel the parties stipulated to abide the result of the suit to set aside the stock transfer. Thereafter, in the stock transfer suit the plaintiff was allowed to amend to allege a constructive trust, and obtained a judgment declaring the subject stock to be held in trust. The court in Huegel held that the stipulation was not binding because the theory of the stock transfer case was changed after the stipulation was entered. This case is also clearly distinguishable upon its facts from the case now under consideration.

We note that after the judgments of nonsuit were entered in the two cases tried at the 23 October 1967 Session, plaintiff appellants did not seek relief from the stipulation which they now contend is not binding. So far as the record discloses they took no action until the motion of individual parties for judgments in accordance with the stipulation was heard before Judge May in April 1968.

"A party to a stipulation who desires to have it set aside should seek to do so by some direct proceeding, and, ordinarily, such relief may or should be sought by a motion to set aside the stipulation in the court in which the action is pending, on notice to the opposite party." 83 C.J.S. Stipulations § 36, p. 93. "Application to set aside a stipulation must be seasonably made; delay in asking for relief may defeat the right thereto." 83 C.J.S. Stipulations § 36, p. 94.

The judgments appealed from are


BRITT and PARKER, JJ., concur.