Cobb v. Clark

Annotate this Case

166 S.E.2d 692 (1969)

4 N.C. App. 230

Vivian W. COBB v. Jerry A. CLARK and Rebecca C. Clark.

No. 6915SC20.

Court of Appeals of North Carolina.

April 2, 1969.

*694 Jordan, Wright, Nichols, Caffrey & Hill by Luke Wright and Edward L. Murrelle, Greensboro, for plaintiff appellee-appellant.

Sanders & Holt by Emerson T. Sanders, Burlington, for defendant appellees-appellants.

BRITT, Judge.

The first question presented by this appeal is whether the superior court should have sustained defendants' plea of the statute of limitations. The action is clearly barred by subsection 5 of G.S. § 1-52 unless saved by the operation of G.S. § 1-25 which provides as follows:

"§ 1-25. New action within one year after nonsuit, etc.If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, if the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis."

G.S. § 1-131 does not apply to this action.

The most recent discussion of the application of G.S. § 1-25 is found in the case of High v. Broadnax, 271 N.C. 313, 156 S.E.2d 282, in an opinion by Sharp, J. That case involved an action for wrongful death arising out of an automobile collision in Rockingham County, North Carolina, and the suit was first brought in the United States District Court sitting in Danville, Virginia. The action in federal court was dismissed "without prejudice." Within one year thereafter but more than two years after intestate's death, plaintiff instituted suit in Rockingham Superior Court. The Supreme Court held that the action did not fall within the grace of G.S. § 1-25. We quote from the opinion as follows:

"We adhere to the general rule that a statute of the forum which permits a suit to be reinstituted within a specified time after dismissal of the original action otherwise than upon its merits has no application when the original suit was brought in another jurisdiction. This rule, however, has no application to an action which was originally instituted in the Superior Court of this State and was thereafter transferred to a United States District Court, where it was later terminated by a nonsuit, or `dismissed without prejudice.' * * *"

Our State Supreme Court has held in several cases that G.S. § 1-25 would apply where an action was instituted in a superior court of this State and thereafter removed to a federal court sitting in this State and there nonsuited. See Marshall Motor Co. v. Universal Credit Co., 219 N.C. 199, 13 S.E.2d 230; Brooks v. Suncrest Lumber Co., 194 N.C. 141, 138 S.E. 532; Fleming v. Southern R. R., 128 N.C. 80, 38 S.E. 253.

It appears that the majority of the states do not agree with the holding in High v. Broadnax, supra. See Annot., 156 A.L.R. 1097, 1103, 1106; also 34 Am.Jur., Limitation of Actions, § 283, p. 230. Nevertheless, the High case is binding on this court.

Although in the case before us the action was instituted in a United States District Court sitting in North Carolina, as *695 contrasted to High v. Broadnax, supra, where the suit was instituted in a United States District Court sitting in Virginia, we perceive no distinction as far as the principle of law declared in High is concerned; the United States District Court is "another jurisdiction" irrespective of whether it sits in Greensboro, N. C., or Danville, Va. Hence, we hold that the present action was barred by the statute of limitations as G.S. § 1-25 is not applicable, and the order of Judge Hall concluding otherwise was error.

The next question is whether the plea of res judicata was properly sustained.

The law is clear that if the allegations of the first complaint and of this complaint are substantially identical, then the plea must be sustained. Davis v. Anderson Industries, 266 N.C. 610, 146 S.E.2d 817. The plaintiff is correct in arguing that if the essential allegations lacking in the former complaint are supplied in the present case, then the plea of res judicata will not be sustained. Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200; Halcombe v. Commissioners, 89 N.C. 346. However, the plaintiff has failed to supply all the allegations needed.

It is true that in her complaint filed in the present action plaintiff has enlarged upon the allegations contained in the former complaints, but we think the complaints are "substantially identical." The opinion by Rodman, J., in the former appeal (Cobb v. Clark, 265 N.C. 194, 143 S.E. 2d 103) contains the following statements: "What plaintiff complains of is defendants' failure to guard against the conduct and mistakes of plaintiff. * * * Plaintiff's injuries were the consequence of her conduct. She now seeks to impose liability on defendants because of their failure to anticipate the mistakes which she made, which mistakes resulted in her unfortunate fall and injuries." In our opinion, the conclusions stated apply to the complaint in the present action also.

We hold that the trial court properly sustained the plea of res judicata.

Defendants assign as error the failure of Judge Bailey to sustain their demurrer to plaintiff's complaint. In view of our holdings on the other questions presented, we deem it unnecessary to pass upon this assignment of error.

Defendants also assign as error the failure of Judge Hall to grant their prayer for injunctive relief in the nature of a bill of peace. We construe defendants' brief to say that they abandoned this assignment of error, therefore, it will not be discussed.

This action is remanded to the Superior Court of Alamance County for entry of judgment not inconsistent with this opinion.

Plaintiff's appealAffirmed.

Defendants' appealError and Remanded.

MORRIS and FRANK M. PARKER, JJ., concur.