Chappell v. . Ebert

152 S.E. 692, 198 N.C. 575, 1930 N.C. LEXIS 414

• Court: Supreme Court of North Carolina
• Decided: April 9, 1930
• Status: Published

Opinion

Stacy, O. J.

It is contemplated by tbe act creating tbe Eorsytb County Court, chapter 520, Public-Local Laws, 1915, amended by chapter 18, Public-Local Laws, 1925, that in appeals from said County Court to tbe Superior Court of Eorsytb County, there shall be “a statement of case on appeal,” for it is provided that such appeals may be taken “in tbe same manner and under tbe same requirements as are now provided by law for appeals from tbe Superior Court to tbe Supreme Court.” Tbe plaintiff’s appeal, therefore, from tbe judgment of tbe County Court to tbe Superior Court of Eorsytb County was subject to be dismissed for failure to serve statement of case on appeal, unless some error appeared on tbe face of tbe record proper, wbicb Judge McElroy perhaps thought might be tbe case, as be declined to dismiss tbe appeal, and wbicb Judge Einley found to be tbe case when be came to pass upon tbe appeal. In tbis view, both rulings are correct.

Tbe judge of tbe County Court found tbe facts and embodied them in bis judgment of dismissal. It is not enough, to sustain a plea of res judicata, that tbe former suit between tbe same parties, concerning tbe same subject-matter, should have been nonsuited on its merits, but, in addition, tbe evidence in tbe two cases must be tbe same or substantially tbe same. Hampton v. Spinning Co., ante, 235, 151 S. E., 266. In this respect, the judgment of the County Court was defective, and the judgment of the Superior Court remanding the cause for another hearing is correct.

Note, the judgment pleaded as an estoppel was not rendered on facts agreed or admitted or established by a verdict (Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535, Hardison v. Everett, 192 N. C., 371, 135 S. E., 288), but is one of nonsuit.

Affirmed.