Revis v. . Ramsey

164 S.E. 358, 202 N.C. 815, 1932 N.C. LEXIS 234

Opinion

Stacy, O. J.

Tbe plaintiff contends that as tbe application of tbe defendant, Z. Ponder, to amend bis answer so as to plead tbe statute of limitations was denied by Stack, J., at tbe October Term, 1931, Sink, J., was without authority at tbe February Term, 1932, to'bear a renewal of tbe same motion and to allow it, upon tbe theory that tbe matter was then res judicata and no appeal lies from one Superior Court judge to another. Wellons v. Lassiter, 200 N. C., 474, 157 S. E., 434; Phillips v. Ray, 190 N. C., 152, 129 S. E., 177; Dockery v. Fairbanks, 172 N. C., 529, 90 S. E., 501; May v. Lumber Co., 119 N. C., 96, 25 S. E., 721; Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130; Roulhac v. Brown, 87 N. C., 1; S. v. Evans, 74 N. C., 324.

Tbe motion made at tbe February Term is different from tbe one lodged at tbe October Term. Compare Jones v. Thorne, 80 N. C., 72. Tbe first was perhaps denied because it was thought tbe statute of limitations bad already been pleaded. But however this may be, no barm bas come to tbe plaintiff from tbe ruling on tbe second motion, and bis appeal is premature.. Trust Co. v. Whitehurst, 201 N. C., 504.

Tbe principle of res judicata does not extend to ordinary motions incidental to tbe progress of a cause, but only to those involving substantial rig-hts. Allison v. Whittier, 101 N. C., 490, 8 S. E., 338; Mabry v. Hernry, 83 N. C., 298.

Appeal dismissed.