Gibson ex rel. Gibson v. Gordon

213 N.C. 666

Opinion

Per CuriaMm.

Careful consideration of the assignments presented in the record on this appeal fails to disclose error.

The record and judgment in the former action are relied upon as a bar to recovery in the present action between the same parties upon the same cause of action. The plea of estoppel on that ground is properly and distinctly pleaded as a defense. Harrison v. Hoff, 102 N. C., 126, 9 S. E., 638; Blackwell v. Dibbrell, 103 N. C., 270, 9 S. E., 192; Stancill v. James, 126 N. C., 190, 35 S. E., 245.

The record itself in the former action, being in existence, is the only evidence admissible to prove its contents. Gauldin v. Madison, 179 N. C., 461, 102 S. E., 851; Little v. Bost, 208 N. C., 762, 182 S. E., 448.

If in the former action plaintiff were sane and capable of consenting to the judgment, he is bound by his consent evidenced by his signature and by that of his attorneys. Cason v. Shute, 211 N. C., 195, 189 S. E., 494, and cases cited. If it be contended that he did not consent or were incapable of consenting, the proper procedure in attacking such judgment is by motion in the cause. Cason v. Shute, supra.

Where consent judgment, entered in an action by a minor, or by a person non compos mentis, by his next friend, in compromise of claim for damages for injury by actionable negligence, recites that the court has investigated the facts and that the settlement is just and reasonable, such judgment is binding upon the minor or the person non compos mentis, and constitutes a bar to later action against the same party on the same cause of action. Oates v. Texas Co., 203 N. C., 474, 166 . If tbe plaintiff in tbe former action bad not regained bis sanity, tbe judgment therein shows upon its face that tbe court investigated tbe facts and found that tbe settlement is just, reasonable, fair and equitable.

Tbe judgment below is

Affirmed.