Peake v. Babson

Court of Appeals of North Carolina

Peake v. Babson

181 S.E.2d 259, 11 N.C. App. 413, 1971 N.C. App. LEXIS 1542

CourtCourt of Appeals of North Carolina

DecidedMay 26, 1971

DocketNo. 718SC196

StatusPublished

Cited by1 cases

This text of 181 S.E.2d 259 (Peake v. Babson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peake v. Babson, 181 S.E.2d 259, 11 N.C. App. 413, 1971 N.C. App. LEXIS 1542 (N.C. Ct. App. 1971).

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Opinion

VAUGHN, Judge.

It was entirely proper for Judge Peel to consider the defendant’s plea in bar prior to a trial on the merits. Wilson v. Hoyle, 263 N.C. 194, 139 S.E. 2d 206. Appellant concedes that the prior judgment constituted an adjudication on the merits and that the parties are identical. “A final judgment, which adjudicates upon the merits the issues raised by the pleadings, ‘estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in [415]*415the exercise of. reasonable diligence, could and should have brought forward.’ ” Wilson v. Hoyle, supra. At the former trial plaintiff had the opportunity to assert her whole claim. It was incumbent upon her to do so. Plaintiff has had her day in court, and has had the opportunity to bring forward all matters now asserted. Judge Peel’s findings and conclusions are clearly supported by the pleadings in the present action, the judgment roll in the prior action and other matters appearing in this record. Plaintiff is estopped to relitigate the questions presented and determined in the former action. The judgment from which defendant appealed is, therefore affirmed.

Affirmed.

Chief Judge Mallard and Judge Parker concur.

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VAUGHN, Judge.

It was entirely proper for Judge Peel to consider the defendant’s plea in bar prior to a trial on the merits. Wilson v. Hoyle, 263 N.C. 194, 139 S.E. 2d 206. Appellant concedes that the prior judgment constituted an adjudication on the merits and that the parties are identical. “A final judgment, which adjudicates upon the merits the issues raised by the pleadings, ‘estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in [415]*415the exercise of. reasonable diligence, could and should have brought forward.’ ” Wilson v. Hoyle, supra. At the former trial plaintiff had the opportunity to assert her whole claim. It was incumbent upon her to do so. Plaintiff has had her day in court, and has had the opportunity to bring forward all matters now asserted. Judge Peel’s findings and conclusions are clearly supported by the pleadings in the present action, the judgment roll in the prior action and other matters appearing in this record. Plaintiff is estopped to relitigate the questions presented and determined in the former action. The judgment from which defendant appealed is, therefore affirmed.

Affirmed.

Chief Judge Mallard and Judge Parker concur.

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Bluebook (online)

181 S.E.2d 259, 11 N.C. App. 413, 1971 N.C. App. LEXIS 1542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peake-v-babson-ncctapp-1971.

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