In Re Broughton Estate

185 S.E. 434, 210 N.C. 62, 1936 N.C. LEXIS 17

• Court: Supreme Court of North Carolina
• Decided: April 29, 1936
• Status: Published

Opinion

Stacy, C. J.

The single question presented by the appeal is whether the board of adjustment was precluded, on the principle of res judicata, from approving issuance of building permit in April, 1935, by reason of its approval of a denial of a similar application in April, 1932.

The trial court held that the case was controlled by the decision in Little v. Raleigh, 195 N. C., 793, 143 S. E., 827. The two cases are not alike. In the first place, the cited ease was on application “to reopen and rehear” a former decision which bad received judicial approval sub nomine Harden v. Raleigh, 192 N. C., 395, 135 S. E., 151. Not so here. In the next place, Little’s case, supra, was not only identical in allegation and fact with the original case, but was in truth the same case. Here, the traffic conditions as found by the board, “have materially changed since the former application was acted on in 1932.”

There was error in holding the principle of res judicata applicable to the facts of the present record. 34 C. J., 808; 43 C. J., 356, et seq.

Error.