Masters v. DunstanAnnotate this Case
124 S.E.2d 574 (1962)
256 N.C. 520
L. D. MASTERS and wife, Sally Ann Masters. v. Forrest V. DUNSTAN.
Supreme Court of North Carolina.
March 21, 1962.
*576 Rodman & Rodman, Washington, for plaintiffs.
McMullan, Aydlett & White, Elizabeth City, for defendant.
In an action by a client against his attorney, the attorney is not liable for negligence in the conduct of litigation where, notwithstanding such negligence in defense of a suit, the client has no meritorious defense. 7 C.J.S.Attorney and Client § 146, p. 983; Frost v. Hanscome, 198 Cal. 550, 246 P. 53 (1926).
Defendant alleges that it has been determined by final judgment in a court of competent jurisdiction that plaintiffs had no meritorious defense to the suit prosecuted by J. W. Carey against plaintiffs, and that he is entitled to plead that judgment as an estoppel in this case.
After default judgment was entered in Carey's action, plaintiffs herein employed counsel, other than defendant, and moved to set aside the default judgment on the ground of excusable neglect. G.S. § 1-220. Defendant herein also retained counsel and joined plaintiffs in prosecution of the motion. The court found that the failure of the attorney to file pleadings was not attributable to Masters and wife and that such neglect was excusable, but found that Masters and wife had no meritorious defense to Carey's action. The court refused to set aside the judgment. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507. Masters and wife did not appeal from the order denying the motion, but instituted the instant action to recover of defendant on account of his alleged negligence in failing to file pleadings and defend the Carey suit. Defendant herein, as an affirmative defense, pleads the finding of no meritorious defense in the order denying the motion to set aside the default judgment as "estoppel as against the plaintiffs herein, and as between the parties hereto, as res judicata of plaintiffs' claim herein." Plaintiffs moved to strike this affirmative defense. The court ruled that the finding in the order refusing to set aside the default judgment does not constitute an estoppel in the instant case, and ordered the defense stricken.
"It is fundamental that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and privies, in all other actions involving the same matter." Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157. "* * * (W)hen a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed." Humphrey v. Faison, 247 N. C. 127, 100 S.E.2d 524, citing and quoting Armfield v. Moore, 44 N.C. 157.
An estoppel by judgment arises when there has been a final judgment or decree, necessarily determining a fact, question or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit. Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Southern Distributing Co. v. Carraway, *577 196 N.C. 58, 144 S.E. 535. An estoppel must be mutual, and where one party is not estopped, the adverse party cannot be estopped. Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; Leary v. VirginiaCarolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570; Meacham v. Larus & Brothers Co., 212 N.C. 646, 194 S.E. 99.
Defendant herein was not a party to the Carey suit, but argues that his participation in the motion to set aside the default judgment puts him in privity with plaintiffs herein. His contention is stated in his brief as follows: "* * * (I)t is a fundamental principle that the estoppel of a judgment applies not only to parties but also to privies. It is said in the case of Queen City COACH COMPANY v. BURRELL, 241 N.C. 432, 85 S.E.2d 688, that a privy, when applied to a judgment or decree, is `one whose interest has been legally represented at the trial.' It clearly appears from the answer herein that the legal interest of defendant Dunstan was represented on the motion in the prior action. He employed a firm of attorneys for that purpose. His interest and that of Masters and wife were one and the same at the hearing on the motion in the prior action. A person in privity under the doctrine of estoppel by judgment is one whose interests are so identified in interest with a party that such party represents the same legal right. HAYES v. RICARD, 251 N.C. 485, 491, 112 S.E.2d 123. It appears from the answer filed herein, together with the exhibits attached thereto and by reference made a part thereof as if copied therein verbatim, that defendant Dunstan and plaintiffs Masters and wife, were each working together and seeking to accomplish the same objective on the motion in the prior action, namely, that of having the default judgment vacated."
There is no definition of the word "privity" which can be applied in all cases. The following general principles stated in 72 C.J.S.Privities; Privies; Privy, pp. 956-958, are pertinent:"The ground of privity is property, not personal relation, and it relates to persons in their relation to property, and does not relate to any question, claim or right independent of property. * * * whether the privity be one of estate, contract, blood, or law, it has no personal basis as a mere matter of sentiment, but rests on some actual mutual or successive relationship to the same right of property. "Absolute identity of interest is essential to privity, and sometimes the word `privity' merely means identity of interest, and is defined as meaning interest or mutuality of interest; and it is said that in legal literature `privity' means partaking of, having a part or interest in or recognizance of any action, matter, or thing." "* * * Privies are persons who are parties to, or have an interest in, any action or thing, or any relation to another; those who are partakers of, or have an interest in any action or thing, or any relation to another; persons connected together, or having a mutual interest in the same action or thing, by some relation other than that of actual contract between them; persons whose interest in an estate is derived from the contract or conveyance of others. Privies are those who are so connected with the parties in estate, or in blood, or in law, as to be identified with them in interest, and consequently to be affected with them by the litigation, and all others not included in these classes are strangers. However, the fact that persons are interested in the same question or in proving the same facts, or that one person is interested in the result of litigation involving the other does not make them privies." * * * * * * "In order to make a man a privy to an action he must have acquired an interest in the subject matter of the action *578 either by inheritance, succession, or purchase from a party subsequently to the action, or he must hold property subordinately."
In Meacham v. Larus & Brothers Co., supra, S and M were passengers in an automobile and were injured when the automobile collided with another vehicle. S sued for damages. M testified for S at the trial. The judgment was adverse to S. M sued the same defendants who pleaded the judgment in the suit by S as res judicata in the action by M. This Court held that mere participation in the trial of the action creates no estoppel by judgment against one not a party. In Falls v. Gamble, 66 N.C. 455, it was held, as succinctly stated in the headnote, that "No estoppel of record is created against one not a party to the record, even though he had instigated the trespass, on account of which the action was brought, aided in defence of the action, employed counsel, introduced his deeds in evidence and paid the costs, and though he and the present defendant claimed by deeds under the present trespasser."
When used with respect to estoppel by judgment, the term "privity" denotes mutual or successive relationship to the same rights of property. One is "privy," when the term is applied to a judgment or decree, whose interest has been legally represented at the trial. A party will not be concluded by a former judgment unless he could have used it as a protection, or as a foundation of a claim, had the judgment been the other way. Queen City Coach Co. v. Burrell, supra.
Defendant herein had no such property interest or right in the subject-matter of the Carey suit as to entitle him, in his own name and right as distinct from that of his principals and clients, to have maintained a motion to set aside the default judgment. And if he had had such interest or right, the mere participation by him in the motion as attorney or witness would have created no estoppel against him, unless his interest or right was by succession from plaintiffs herein. In the hearing on the motion to set aside the default judgment defendant herein was not legally involved; he was present and representing the rights and interest of plaintiffs herein. He had a personal, but not a legal, interest in the outcome. His interest was not identical with, nor by succession from, his clients. His interest arose from his obligation to his clients, not out of the transactions, or matters being litigated, between his clients and Carey. If the court had found that he had negligently failed to file pleadings in the Carey case, that such neglect was not attributable to his clients but was excusable as to them, and that they had a meritorious defense, and if the court, upon such findings, had refused to set aside the default judgment, such findings would not have estopped defendant in the instant case to deny negligence on his part and to assert want of a meritorious defense. He was not legally represented therein and could not have appealed from the order in his own right. Moreover, he does not in the instant action recognize the order in question as binding upon himit, in effect, finds that he was inexcusably negligent in failing to file pleadings, yet, in his answer in the case at bar, he denies negligence. As already stated, an estoppel must be mutual. Since an opposite finding on the question of meritorious defense would not have estopped defendant, the finding made does not estop plaintiffs. Defendant was not in privity with plaintiffs.
The court did not err in striking defendant's affirmative defense of estoppel by judgment. Nor are the facts alleged therein competent as evidence on the issue of meritorious defense. "Except where the principle of res judicata is involved, the previous finding of a court cannot be used as evidence of the fact found * * *." Stansbury: North Carolina Evidence, s. 143, pp. 288, 289. "* * * (A) judgment in another cause, finding a fact now in issue, is ordinarily not receivable." Wigmore on Evidence, Vol. V, s. 16712, p. 689. *579 See also Bullock v. Crouch, 243 N.C. 40, 89 S.E.2d 749; Rabil v. Farris, 213 N.C. 414, 196 S.E. 321, 116 A.L.R. 1083; Keenan v. Commissioners, 167 N.C. 356, 83 S.E. 556; Coble v. Huffines, 133 N.C. 422, 45 S.E. 760; Briley v. Cherry, 13 N.C. 2. There are exceptions to this rule: 20 Am.Jur., Evidence, s. 1001, pp. 848, 849; 50 C.J.S. Judgments § 821, pp. 384, 385; Hodges v. Wilkinson, 111 N.C. 56, 15 S.E. 941, 17 L.R.A. 545; Galloway v. McKeithen, 27 N.C. 12. But none of the exceptions apply here.
The judgment below is
SHARP, J., took no part in the consideration or decision of this case.