Tussey v. . Owen

61 S.E. 180, 147 N.C. 335, 1908 N.C. LEXIS 63

• Court: Supreme Court of North Carolina
• Decided: April 15, 1908
• Status: Published

Opinion

Walker, J.,

after stating the case: When this case was here before we declared that there was error and that the Superior Court should have entered a judgment of nonsuit against the plaintiffs. The judgment of this Court was duly certified to the court below, with directions to proceed further in the cause in accordance with the opinion by which the non-suit had been ordered. The nonsuit was ordered, not upon the pleadings, but upon the evidence, under the provisions of the statute (Eevisal, sec. 539). It was in law equivalent to a reversal of the judgment below and a direction to dismiss the action. Hollingsworth v. Skelding, 142 N. C., 246; Bowden v. Railroad, 144 N. C., 28. It was therefore the duty of the Superior Court, when it received the certificate of this Court with the accompanying opinion1, to dismiss the action in accordance with the mandate of the judgment delivered here. It had no power to proceed otherwise than as directed in that judgment, and especially did it not have the power to proceed in a manner inconsistent therewith. The cases to this effect are numerous. Calvert v. Peebles, 82 N. C., 334; Murrill v. Murrill, 90 N. C., 120; Brendle v. Herren, 97 N. C., 257; Pearson v. Carr, 97 N. C., 194; Dob-son v. Bimonton, 100 N. C., 56; Stephens v. Koonce, 106 N. C., 222; Herndon v. Insurance Co., 108 N. C., 648; Black v. Black, 111 N. C., 300. In McCall v. Webb, 126 N. C., 760, this Court held that after final judgment in the Supreme Court it is too late to set up a new cause of action by amendment of the complaint, and in White v. Butcher, 97 N. C., 7, this Court refused to permit any change in the pleadings for tbe purpose of introducing new matter into the case after it bad been finally decided upon the merits. “The controversy adjusted in this Court could not be reopened in the court below, as seems to have been attempted, by new pleadings introduced or by permitting anything’ to be done inconsistent or at variance with the rulings here made.” White v. Butcher, 97 N. C., 10.

In Murrill v. Murrill, supra, it is suggested that the refusal of the Superior Court to obey the mandate of this Court is not reviewable by appeal, .as there is nothing to be reviewed, the proper remedy being by mandamus, following Ray v. Ray, 34 N. C., 24. In this case the Superior Court eventually did what should have been done when the judgment and opinion of this Court Were certified to and received by the court below. The intermediate orders and proceedings are nugatory. The plaintiff may, under the decisions of this Court, bring another .action within one year after the judgment of nonsuit. Meekins v. Railroad, 131 N. C., 1; Prevatt v. Harrelson, 132 N. C., 250; Evans v. Alridge, 133 N. C., 378; Nunally v. Railroad, 134 N. C., 755; Hood v. Telegraph Co., 135 N. C., 627. If this were an open question the writer of this opinion would not give his assent to the principle as thus decided, as a dismissal of the case upon the merits, whether called a non-suit or by any other name, is equivalent in law to a judgment upon a demurrer to the evidence, which by the best-considered authorities has the same effect as a bar to another suit, as a judgment rendered upon a demurrer to the pleadings or as any other judgment upon the merits. Willoughby v. Stevens, 132 N. C., 254. But the law has been settled the other way by actual decision upon the very question, and we now hold unanimously that another suit will lie within a year of the nonsuit. It would seem that a decision affirming the judgment is the best disposition for the plaintiff that could be made of the case, as it eliminates the serious question raised by tbe defendant’s counsel whether the judgment of the Superior Court sustaining the demurrer operates as a bar to a second assertion of the same cause of action to which the objection by way of demurrer was first taken. The plaintiff may sue again and plead as she may be advised.

No Error.