St. Dennis v. Thomas

70 S.E.2d 3, 235 N.C. 391, 1952 N.C. LEXIS 399

• Court: Supreme Court of North Carolina
• Decided: April 9, 1952
• Status: Published

Opinion

YaleNtiNe, J.

Tbe trial judge was correct in overruling tbe plea in abatement. Brown v. Polk, 201 N.C. 375, 160 S.E. 357.

Tbe parties in tbe two suits are not identical. Tbe causes of action are different, and tbe results sought are dissimilar. Tbe final judgment in tbe prior action instituted by L. W. Tbomas and wife, Editb R. Tbomas, against John St. Dennis and wife, Mignon M. St. Dennis, would not properly support a plea of res judicata, in tbe present action. Tbis is a crucial test of identity. Hawkins v. Hughes, 87 N.C. 115; 1 C.J. 56; Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452; Thompson v. Herring, 203 N.C. 112, 164 S.E. 619; Oil Co. v. Fertilizer Co., 204 N.C. 362, 168 S.E. 411.

Nothing was said in tbe cases cited in appellants’ brief wbicb militates against our present position.

Tbe judgment of tbe court below must be

Affirmed.