Brown v. . Johnson

SoheNce, J. A perusal of tbe pleadings and of tbe evidence in tbe former ease and in tbe instant case leads us to tbe conclusion tbat identically tbe same issues arise upon tbe pleadings in tbe respective actions. Tbe parties are tbe same. Tbe allegations and evidence are substantially tbe same, tbe only variance being tbat in tbe instant case tbey are more elaborate and cumulative. Tbe variance is of degree ratber than of substance, there being no material facts tbat were provable under tbe instant pleadings tbat were not provable under tbe former, and no material facts supported by evidence in tbe instant ease tbat were not supported by evidence in tbe former case. His Honor, therefore, was correct in bolding tbat tbe judgment in tbe former case, from which no appeal was taken and which remains unimpeacbed, was res adjudicata, and tbat tbe plaintiff was estopped thereby to prosecute tbis action. Hampton v. Spinning Co., 198 N. C., 235; Ferguson v. Spinning Co., ante, 496, and cases there cited. *808 While we have considered this case upon its merits, we are constrained to call attention to the fact that the appeal might well have been dismissed under Rule 19 of this Court, since no summons appears in the record of the case on appeal, and there is nothing to show that the term of court was regularly held, or that the cause was properly constituted in court. Sanders v. Sanders, 201 N. C., 350; Pruitt v. Wood, 199 N. C., 788. Affirmed.