Wilder v. . Lee

64 N.C. 50

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Read®, J.

All the questions in this case are res adjudicates between the same parties, as appears from the complaint itself. There would be no end to litigation, if when the plaintiff recovers of the defendant without fraud, surprise or accident, the defendant could turn round and sue the plaintiff, with the view to make the same issues, and try them again. There is nothing set forth in the complaint that amounts to fraud, surprise or accident; and if the defendant has suffered, it was on account of his own laches. The plea to the jurisdiction was put in by him, and found against him, and his failure to claim the scale of depieciation, if he was entitled to it, was his own negligence. The alleged absence of testimony, when he had not summoned the witness, can not avail him.

The supposed equity in the complaint, is fully denied by the answer.

The injunction ought to have been vacated. The continuing it was error. This will be certified, &c.

Pee Cubiam:. Order accordingly.