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127 S.E.2d 222 (1962)

257 N.C. 646

William Jarvis LEGGETT and wife, Lossie Bell Leggett v. SMITH-DOUGLASS COMPANY, Inc., Ivan Bissette and Robert D. Wheeler, Trustee, and Frank Hart.

No. 100.

Supreme Court of North Carolina.

September 19, 1962.

*224 Charles L. Abernethy, Jr., New Bern, for appellants.

Robert D. Wheeler, Grifton, Albion Dunn, Greenville, for appellees.

DENNY, Chief Judge.

Chapter 743 of the Session Laws of 1959, codified as G.S. § 1-287.1, authorizes the superior court to dismiss an appeal to the Supreme Court when the statement of the case on appeal has not been served on the appellee or his counsel within the time allowed. This statute does not apply when the case on appeal has been docketed in the Supreme Court. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118. In such instances, the appeal may not be withdrawn without the approval of this Court. However, we are inclined to the view that when a demurrer to the complaint filed in an action has been sustained and the plaintiff gives notice of appeal to the Supreme Court, but instead of perfecting the appeal he elects to take a voluntary nonsuit and brings another action pursuant to the provisions of G.S. § 1-25, the taking of a voluntary nonsuit before the clerk of the superior court is tantamount to an abandonment or withdrawal of the appeal.

The record in this appeal contains the complaints and the respective amendments to the complaints filed by the plaintiffs in the second and third actions. Neither complaint, including the amendments thereto, states a cause of action upon which a judgment could be predicated for the relief sought. The pleadings and the amendments thereto are almost interminable and allege evidentiary matters and conclusions rather than facts. The plaintiffs' pleadings do not conform with the requirements of good pleadings within the meaning of G.S. § 1-122. Parker v. White, 237 N.C. 607, 75 S.E.2d 615; Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660. For example, the plaintiffs seek to set aside the foreclosure proceeding and to have the sale declared illegal. The only ground alleged, however, for the relief sought is that "there has not been a legal and valid advertisement by which a valid foreclosure could be effectuated." Wherein the advertisement was defective is nowhere alleged. In both actions the plaintiffs undertook to attack the validity of the deed of trust which was executed by the plaintiffs on 29 December 1958 and at the same time alleged that the consent judgment entered on 28 January 1961 was entered in good faith. That judgment recites that the deed of trust "is a good and valid deed of trust and the same shall remain in full force and effect," fixed the balance due on the note secured by the deed of trust and set out a new schedule of payments; otherwise the deed of trust was to remain in full force and effect and to be foreclosed in accordance with its terms if the plaintiffs defaulted in the payment of the amounts set out in the consent judgment. There are no allegations to the effect that the consent judgment was obtained by fraud or mutual mistake. The plaintiffs do not attack the validity of the consent judgment, nor do they attempt to have it set aside upon the ground of fraud or for any other reason. Therefore, they are bound by its terms.

The plaintiffs are in no position to attack the validity of the deed of trust or the amount due thereunder so long as the consent judgment remains in full force and effect.

As we construe the pleadings, the only cause of action upon which the plaintiffs might obtain relief with respect to the foreclosure proceeding would be an action based on irregularities, if any, which would be sufficient to upset the foreclosure proceeding. *225 No such allegations appear in the present pleadings. These plaintiffs should state their cause of action, if any, by a plain and concise statement of facts constituting such cause of action, but if they are unable or unwilling to do so, then they should be restrained from further annoying these defendants by vexatious litigation in connection with the transactions involved. Nowell v. Neal, 249 N.C. 516, 107 S.E.2d 107.

Therefore, we hold that the demurrer filed in the second cause of action was properly sustained for failure of plaintiffs to state a cause of action, and, for the same reason, the demurrer to the complaint filed in the third or present action will be sustained. Gillikin v. Springle, 254 N.C. 240, 118 S.E.2d 611; Skinner v. Empresa Transformadora, S.A., 252 N.C. 320, 113 S.E.2d 717.

Under our decisions, we hold that it was error to dismiss the action. Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123; Kelly v. Kelly, 241 N.C. 146, 84 S.E.2d 809; Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82; Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90; Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266.

Where, in the trial of a new action, "upon its merits, * * * it appears to the trial court, and is found by such court as a fact, that the second suit is based upon substantially identical allegations and substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res judicata, and thus end that particular litigation." Hampton v. Rex Spinning Co., supra.

Unfortunately, the plaintiffs herein, neither in the second or third action, have stated a cause of action that will entitle them to come to bat on the purported merits of the controversy.

Except as modified herein, the judgment entered below will be upheld.

Modified and Affirmed.

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