R. L. COBURN and wife, Martha H. Coburn
v.
ROANOKE LAND AND TIMBER CORPORATION et al.
No. 21.
Supreme Court of North Carolina.
September 18, 1963.*341 Griffin & Martin, Williamston, C. W. Everett, Bethel, and R. L. Coburn, by Clarence W. Griffin, Williamston, for plaintiff appellants.
Peel & Peel, Williamston, and Bourne & Bourne by Henry C. Bourne, Tarboro, for defendant appellees.
RODMAN, Justice.
Plaintiffs state the question for decision: "Did his Honor Judge Bundy commit error in continuing the temporary restraining order herein?"
The right to appeal is limited to a party aggrieved. G.S. § 1-271. A party is aggrieved if his rights are substantially affected by judicial order. G.S. § 1-277. If the order complained of does not adversely affect the substantial rights of appellant, the appeal will be dismissed. First Union National Bank of N. C. v. Melvin, 259 N.C. 255, 130 S.E. 387; Ferrell v. Basnight, 257 N.C. 643, 127 S.E.2d 219; In re Application for Reassignment of Pupils, 247 N.C. 413, 101 S.E.2d 359; Gregg v. Williamson, 246 N.C. 356, 98 S.E.2d 481; Langley v. Gore, 242 N.C. 302, 87 S.E.2d 519.
Manifestly plaintiffs have no right to complain of an order prohibiting them from cutting the timber, if the judgment rendered by Judge Fountain, and found by this Court to be free of error, estops plaintiffs from asserting title to the timber. Therefore, the crucial question is: Are plaintiffs estopped to deny Timber Corporation's title. Plaintiffs contend the judgment is the equivalent of a voluntary nonsuit and hence could not constitute an estoppel. They cite and rely on Grimes v. Andrews, 170 N.C. 515, 87 S.E. 341, and Taylor v. Scott, 255 N.C. 484, 122 S.E.2d 57, which applied the principles announced in Grimes v. Andrews.
In Grimes v. Andrews, supra, relied on by plaintiffs, the court said: "The dismissal of the former suit, if for the same cause of action, did not constitute an estoppel, as the case was not heard and decided on its merits, but the dismissal was equivalent to a nonsuit, granted because plaintiff in that suit had not prosecuted the same. * * We do not say that, where it appears that the merits have been considered and passed upon, the judgment of dismissal may not be successfully pleaded as a former adjudication, but no such thing occurred here. The other suit was dismissed, with costs against the plaintiff, simply because he had failed to restore the lost record, and in no sense were the merits touched upon. It could have no more legal effect than a nonsuit, where the plaintiff fails to prosecute his cause, or is called and fails to appear. His laches puts him out of court, and that is all it does, and he may *342 come back again at his will and pleasure and pursue the same cause without being affected by any bar of the former judgment."
In the present case there was a full hearing with opportunity to each of the parties to establish their respective claims. Here numerous documents consisting of deeds, wills, and other writings were offered in evidence by the respective parties. Sixteen witnesses testified at length with respect to the merits of the controversy, the location of the lands, possession, and other facts on which the parties relied to establish or controvert plaintiffs' title. Plaintiffs and defendants Lindsley, under whom Timber Corporation asserts the right to cut timber, are the owners of adjoining properties, the Lindsley property being known as the Conoho farm. As said by Sharp, J., in the first appeal (257 N.C. at p. 227, 125 S.E.2d at p. 597): "The instant case involves a complicated question of boundary which, we may assume, required a personal view of the premises since the referee, with counsel, did make one." The crucial question in the case, therefore, has at all times been: Who owned the 87.79 acres in controversy? Was it a part of the Coburn farm, or was it a part of the Conoho farm? The report of the referee, approved by the judge, is equivalent to an express jury finding that plaintiffs were not the owners of the land in controversy. They are now estopped as to Timber Corporation to assert that they do own the land. Wicker v. Jones, 159 N.C. 102, 74 S.E. 801, 40 L.R.A.,N.S., 69; Land Co. v. Guthrie, 123 N.C. 185, 31 S.E. 601; Yates v. Yates, 81 N.C. 397; Falls v. Gamble, 66 N.C. 455; Rogers v. Ratcliff, 48 N.C. 225; Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 111 A.L.R. 1152; Herschbach v. Cohen, 207 Ill. 517, 69 N.E. 932, 99 Am. St. Rep. 233; 50 C.J.S. Judgments § 742, p. 253; 18 Am.Jur. 102-3; 52 Am.Jur. 894.
The right of appellee to recover damages for timber assertedly cut from the land in controversy in April 1963 is not presented by this appeal. The cause was retained merely for the purpose of assessing damages, if any, sustained by reason of the issuance of the restraining order in 1957. Gruber v. Ewbanks, 199 N.C. 335, 154 S.E. 318; Timber Co. v. Rountree, 122 N.C. 45, 29 S.E. 61; Pearson v. Carr, 97 N.C. 194, 1 S.E. 916; Brendle v. Herren, 97 N.C. 257, 2 S.E. 158.
Since plaintiffs are estopped to assert title to the land in controversy, it follows that an order enjoining them from cutting timber which they do not own does not affect any substantial right of theirs. They are not parties aggrieved.
Appeal dismissed.