Lee v. King

209 S.E.2d 831 (1974)

23 N.C. App. 640

Mary Alice King LEE et al., Petitioners, v. Willie Albert KING et al., Respondents.

No. 7417SC761.

Court of Appeals of North Carolina.

November 20, 1974.

Certiorari Denied December 30, 1974.

*833 Griffin, Post & Deaton by W. Edward Deaton, Richard A. Cresenzo, and Peter M. McHugh, Reidsville, for petitioner appellants.

Gwyn, Gwyn & Morgan by Julius J. Gwyn, Reidsville, for respondent appellees.

Certiorari Denied by Supreme Court December 30, 1974.

BRITT, Judge.

The sole question before us is whether the motion for summary judgment was properly granted. In ruling on a motion for summary judgment, the court does not resolve issues of fact and must deny the motion if there is a genuine issue of material fact. The motion may be granted only where there is no such issue and the moving party is entitled to judgment as a matter of law. G.S. § 1A-1, Rule 56; Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

Although the trial judge made detailed findings of fact and conclusions of law, this is not required under Rule 56. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The findings of fact and conclusions of law have no effect on this appeal and are irrelevant to our decision. Consequently, the only assignment of error we consider is that relating to the entry of judgment in favor of respondents.

Respondents contend that inasmuch as the conditions set forth by Judge Exum for reinstitution of a partition proceeding regarding Tract #3 were not complied with, the adjudications that Willie Albert King's motion for directed verdict should have been granted in the former proceeding were res judicata as to this proceeding. We agree.

It is well settled that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of *834 rights, questions and facts in issue, as to the parties and privies, in all other actions involving the same matter. Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962); Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157 (1942).

Each of the petitioners and respondents, or his privy, in this proceeding was a party in the former proceeding. The fact that petitioners in this proceeding were respondents in the former proceeding, and that certain of respondents here were petitioners there, makes no difference on the question of res judicata. Peake v. Babson, 11 N.C.App. 413, 181 S.E.2d 259 (1971). They were all parties. The interests of petitioners and respondents in the former proceeding, except for Willie Albert King and wife, were the same and the issue of title to Tract #3 was squarely presented. There is no doubt that the superior court and, in turn, this court and the Supreme Court had jurisdiction. The adjudication by the Court of Appeals that Willie Albert King and wife were entitled to a directed verdict on the claim that all 13 children of Albert King owned Tract # 3 was affirmed by the Supreme Court. The Supreme Court provided the only way for the children of Albert King, other than Willie Albert, to assert again their claim to an interest in the land in question. We quote from the opinion (279 N.C. page 106, 181 S.E.2d page 404):

"Under Rule 41(a)(2), at the instance of the plaintiff, the court may permit a voluntary dismissal upon such terms and conditions as justice requires. (Citations). In contrast to the former practice (citation), a dismissal without prejudice is permissible under Rule 41(a)(2) only when so ordered by the court, in the exercise of its judicial discretion, upon finding that justice so requires. (Citation)."

When the former proceeding was remanded to the superior court, the petitioners moved for a voluntary dismissal. To allow the motion was addressed to the sole discretion of the superior court judge, and if he allowed it, he had the authority to impose ". . . such terms and conditions as justice requires." In allowing the motion, Judge Exum imposed two conditions, the meeting of which were a prerequisite to a reinstitution of the proceeding as to Tract #3. Those conditions were not complied with, therefore, respondents are entitled to a dismissal of this proceeding.

The judgment of the superior court allowing respondents' motion for summary judgment is

Affirmed.

CAMPBELL and VAUGHN, JJ., concur.