Nowell v. Neal

Annotate this Case

107 S.E.2d 107 (1959)

249 N.C. 516

Virginia N. NOWELL v. J. Walter NEAL and Alfred Hamilton.

No. 456.

Supreme Court of North Carolina.

February 25, 1959.

Virginia N. Nowell in pro. per.

Smith, Leach, Anderson & Dorsett and Howard E. Manning, Raleigh, for defendant-appellees.

RODMAN, Justice.

Plaintiff took no exceptions to the findings of fact. Her sole assignment of error reads:

"The plaintiff excepted to and assigns as error The Judgment and The Signing Thereof; The Order and The Signing Thereof."

This assignment raises only these questions: (1) Did the judge err in refusing to set aside the verdict rendered at the May 1955 Term and the judgment based thereon which had been affirmed by this Court; and (2) Do the facts found by the court support the order entered?

The basic reason underlying plaintiff's motion for a new trial on the issues raised at the trial had at the May 1955 Term is the asserted expression of opinion by the trial judge adversely to plaintiff in violation of our statute, G.S. § 1-180. She contends that the court in various way improperly influenced the jury to answer the crucial issue against her.

The law imposes on the trial judge the duty of absolute impartiality. The expression of an opinion by the trial court on an issue of fact to be submitted to a jury, being prohibited by statute, is a legal error. State v. Swaringen, 249 N.C. 38, 105 S.E.2d 99; In re Will of Holcomb, 244 N.C. 391, 93 S.E.2d 454; Adams v. Beaty Service Co., 237 N.C. 136, 74 S.E.2d 332; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378.

The proper method for obtaining relief from legal errors is by appeal, G.S. § 1-277, and not by application to another Superior Court. "In such cases, a judgment entered by one judge of the Superior Court may not be modified, reversed or set aside by another Superior Court judge." Davis v. Jenkins, 239 N.C. 533, 80 S.E.2d 257, 258; Rawls v. Mayo, 163 N.C. 177, 79 S.E. 298.

That appeal is the proper method of correcting the asserted errors was recognized by plaintiff and her attorneys on the prior appeal. Reference to the record and briefs on that appeal shows 76 assignments of error, 42 of which are to the charge of the court. The 71st assignment of error then urged for a new trial reads: "For that the court instructed the jury in a manner that was highly prejudicial to plaintiff." Other exceptions point to specific parts of the charge which plaintiff then said and now repeats demonstrated a violation of G.S. § 1-180. Approximately ten pages of plaintiff's brief on the prior appeal are devoted to this question. The brief then filed by her stated: "Every charge by the Court in this group(enumerated assignments of error) demonstrates the partiality of the Court in favor of the defendant and this partiality could not have escaped the notice of the jury."

This Court said: "Careful consideration of plaintiff's assignments of error, brought forward and argued in the brief filed in her behalf discloses no error of law deemed of *111 sufficient prejudicial effect to warrant a new trial." [243 N.C. 175, 90 S.E.2d 248.]

No petition to rehear was filed. That is the appropriate method of obtaining redress from errors committed by this Court. Rule 44 prescribes the procedure for the correction of errors made by this Court. Robinson v. McAlhaney, 216 N.C. 674, 6 S.E.2d 517; Strunks v. Southern Ry. Co., 188 N.C. 567, 125 S.E. 182.

The court correctly denied plaintiff's motion to set aside the verdict and direct a new trial.

Did the court err by enjoining plaintiff from instituting new actions limited to the class enumerated in the order? Based on the findings made, we are of the opinion that sound public policy requires a negative answer and an affirmance of the order.

It is be noted that the order does not apply to actions then pending but relates only to actions subsequently instituted. It is limited to causes of action in tort which arose more than seven years ago, causes of action long since barred by the statutes of limitations, G.S. § 1-52, subds. 1, 5, G.S. § 1-54, and to an action which, as to the defendant Neal, was disposed of on its merits more than three years ago and which can by him be pleaded as res judicata, and as to the defendant Hamilton voluntarily dismissed by plaintiff without any right now to institute a new action. G.S. § 1-25.

The order based on the facts found is supported by what this Court has previously said in a factually similar case, Moore v. Harkins, 179 N.C. 167, 101 S.E. 564, 565. The Court there said: "We are of opinion that the action of his honor in enjoining the plaintiff from prosecuting further actions on the same cause of action was warranted by the facts. The remedy of a bill of peace to prevent vexatious litigation was well known at the common law. As a rule the remedy has not been sought very often in this state, but the right to ask for it is well established, and it may be invoked in the pending action, and a new action for that purpose is not necessary under our method of procedure. Featherstone v. Carr, 132 N. C. 800, 44 S.E. 592.

"At common law the remedy was affirmed by a bill in equity enjoining the plaintiff from proceeding in the law courts. One of the earliest cases in which a bill of peace was sought is reported in Selden's cases, in Chancery, 18. In this state the distinctions between law and equity procedure have been abolished, but the principles of both remain and equitable relief may be sought in the same action in which the demand at law is sought to be enforced."

Petitions to rehear were filed. Clark, C. J., in denying the petition, said: "Interest republicae ut sit finis litium. When a party, by reason of a nonsuit or otherwise, renews his action on the same ground again and again, before a magistrate, or before the Superior Court, the courts will prevent a defendant (who has some rights) being oppressed or annoyed by vexatious litigation, and will restrain the persistent plaintiff from bringing further action by a bill of peace. Certainly the courts should not permit a party to renew his litigation by petition to rehear unless the petition is well founded, and when it has once decided that it is not, it cannot be again presented by a second, or in this case a third, application to rehear."

The doctrine declared in Moore v. Harkins has been recognized and applied to prevent vexatious litigation and to effectively apply the principle of res judicata expressed in the phrase "Nemo debet bis vexari pro una et eadam causa." Favorite v. Minneapolis St. Railway Co., 253 Minn. 136, 91 N.W.2d 459; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 91 A.2d 778; Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600; Odom v. Langston, 356 Mo. 1140, 205 S.W.2d 518; Haskell Nat. Bank of Haskell v. Ferguson, Tex.Civ. App., 155 S.W.2d 427; Ackerman v. Kaufman, 41 Ariz. 110, 15 P.2d 966; Steinberg v. McKay, 295 Mass. 139, 3 N.E. *112 2d 23; Fretwell v. Gillette Safety Razor Co., 4 Cir., 106 F.2d 728; Borough of Milltown v. City of New Brunswick, N.J.Ch., 46 A.2d 562; Mendel v. Berwyn Estates, 109 N.J.Eq. 11, 156 A. 324; 28 Am.Jur. pp. 246, 249, 250; 43 C.J.S. Injunctions § 39, p. 479.

Plaintiff failed to except to the findings of fact made by the court. Notwithstanding this failure on her part, she insists in her brief that the facts found are based on false and perjured testimony. When the court is confronted with conflicting testimony, it should, if possible, harmonize and reconcile the differences; but if that is not possible, it must determine which of the witnesses it will believe; and when the court has found the facts from the conflicting testimony, the findings so made are binding on us.


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