Batson v. City Laundry Co.

BbogdeN, J.

C. S., 415, permits a plaintiff to bring a new action within one year after a judgment of nonsuit. No point is made that the present suit was not brought within a year after the judgment of nonsuit reported in Batson v. Laundry, 205 N. C., p. 93. Consequently the plaintiff had a right to bring a new action. If it should be held that the plea of res adjudicaia was applicable to the remedy set up by C. S., 415, it is manifest that this statute would be whittled down to a nullity because every judgment of nonsuit could then be set up as a bar to a new action. The essentials of estoppel by judgment are summarized in Hardison v. Everett, 192 N. C., 371 , 135 S. E., 288 , but it is apparent that C. S., 415, W'as enacted for the express purpose of giving a plaintiff another chance if the allegations and evidence warranted it. The case of Hampton v. Spinning Co., 198 N. C., 235 , 151 S. E., 266 , undertook to prescribe a standard by which to test and determine the maintainability of the new action. This limitation is stated as follows in the Hampton case:

“But, if upon the trial of the new action, upon its merits, ... it appears to the trial court, and is found by such court as a fact, that the second suit is based upon substantially identical allegation and substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res adjudicaia, and thus end that particular litigation.” In the ease at bar the trial judge heard no evidence and found no facts. Hence it does not appear whether the merits of the present case are substantially identical to the former case or not. Therefore, the Court is of the opinion that the judgment dismissing the action upon the plea of estoppel was prematurely and inadvertently made.

Reversed.