Mercer v. Hilliard

*728

Bobbitt, J.

The sole ground of .plaintiff's motion is that the facts alleged by defendants do not constitute a legal defense to plaintiff’s action. In substance, if not in form, plaintiff’® motion is a demurrer to defendants’ “First Further Answer and Defense,” in its entirety, and will be so considered.

Hayes v.

Wilmington, 243 N.C. 525 , 91 S.E. 2d 673 ;

Etheridge v. Light Co.,

249 N.C. 367 , 106 S.E. 2d 560 .

G.S. 1-141, m pertinent part, provided: “The plaintiff may in all oases demur to an answer containing new matter, where upon its face, it does not constitute a . . . defense; and he may demur to one or more of .such defenses . . ., and reply to the residue.”

Williams v. Hospital

Asso., 234 N.C. 536 , 67 S.E. 2d 662 ;

Jenkins v. Fields,

240 N.C. 776 , 83 S.E. 2d 908 .

“A plea in bar is one that denies the plaintiff’s right to maintain the action, and which, if established, will destroy the action.” McIntosh, N. O. Practice & Procedure, § 523;

Brown v. Clement Co.,

217 N.C. 47 , 6 S.E. 2d 842 ;

Solon Lodge v. Ionic Lodge,

245 N.C. 281 , 95 S.E. 2d 921 .

An order or judgment which

sustains

a demurrer to a plea in bar affects a substantial right and a defendant may appeal therefrom. G.S. 1-277;

Shelby v. R. R.,

147 N.C. 537 , 61 S.E. 377 . Rule 4(a), Rules of Practice in the Supreme Count, 242 N.C. 766 , when otherwise applicable, limits the right of immediate appeal only in instances where the demurrer is

overruled.

The facts alleged by defendants do not constitute either an adjudication or -an acknowledgment that negligence on the part of Mrs. Mercer proximately caused the collision between the Mercer and Hil-liard cars.

Dixie Lines v. Grannick,

238 N.C. 552 , 78 S.E. 2d 410 .

The factual situation here illustrates the soundness of the reasons stated by

Ervin, J.,

in support of the decision in

Dixie Lines v. Grannick, supra.

Mrs. Strickland’s action in Wake Superior Court involved a small property claim. The Mercers were residents of Wilson County. Independent of questions relating to legal liability, the inconvenience .and the expense of fighting the

Strickland

case would seem 'Sufficient practical ground to induce the Mercers to effect a compromise settlement of Mrs. Strickland’s claim. Moreover, if plaintiff preferred, by effecting a compromise settlement thereof, to eliminate Mrs. Strickland’s small property damage claim, so that the respective rights of the Mercers and of defendants

inter se

would be adjudicated in the separate action then pending between them rather than as a .subordinate feature of the

Strickland

case, they were at liberty to do so.

Defendants undertake to distinguish

Dixie Lines v. Grannick, supra,

*729

on tiie ground ifcbaifc no court «action or judgment was involved therein. This factual distinction is «immaterial. In both «oases «there was «an out of «court compromise «settlement. Having received the compromise consideration, «and «having executed «a full release, Mrs. Strickland was

thereby

precluded from prosecuting her action. The judgment of voluntary nonsuit was only «an incident in the consummation of the out «of court compromise settlement.

It is noteworthy «that the compromise settlement was between Mrs. Strickland «and tire Mercers. Defendants do not «allege that «they or either «of them participated therein in «any way. If it .absolved defendants from liability to Mrs. Strickland, to this extent defendants have reason to be well «pleased.

Defendants contend, citing

Steele v. Beaty,

215 N.C. 680 , 2 S.E. 2d 854 , that the judgment was «a

retraxit

rather «than «a «simple judgment of voluntary nonsuit. In either event, it was not a judicial determination or adj'udieation «of liability -on «the «part «of the Mercers. If a

retraxit,

its legal effect was «to estop

Mrs. Strickland

from instituting another «suit «on the same cause of «action.

The factual «situations in

Coach Co. v. Stone,

235 N.C. 619 , 70 S.E. 2d 673 , «and in the «cases «cited therein, «are «stated and distinguished by

Ervin, J.,

in

Dixie Dines v. Grannick, supra.

Suffice to say,

Dixie Lines v. Grannick, supra,

o«n which the present decision is based, is expressly approved.

Affirmed.