Little v. . Bost

CONNOR, J. At the hearing of her appeal from the order of the clerk allowing defendant’s motion that certain allegations in her reply be stricken therefrom, the plaintiff offered as evidence to show that the action begun by her against the defendants on 24 November, 1933, is identical with the present action, an application in writing made by her attorneys in the former action for an extension of time within which she might file her complaint in said action. In this application, the plaintiff showed to the court that her action was to recover damages for personal injuries suffered by the plaintiff, resulting from an automobile wreck on 27 November, 1930, which was caused by the negligence of the defendants. To the refusal of the judge to admit said application as evidence the plaintiff excepted, and on her appeal to this Court assigns such refusal as error. This assignment of error cannot be sustained. It is admitted that no complaint was filed by the plaintiff in the action which was begun by her against the defendants un 24 November, 1933. The application made in said action for an extension of time'within which a complaint might be filed is not admissible as evidence to show that the cause of action on which she sought to recover in said action is identical with the cause of action on which she seeks to recover in this action. In Gauldin v. Madison, 179 N. C., 461, 102 S. E., 851, it is said by Walker, J., that the complaint itself is the only evidence of the cause of action alleged, or intended to be alleged. It is well settled by the uniform decisions of this Court that parol evidence is not admissible to *764 show tbe cause of action on which tbe plaintiff sought to recover in an action wbicb bas been dismissed by judgment of nonsuit. Drinkwater v. Western Union Telegraph Co., 204 N. C., 224, 168 S. E., 410, and cases cited in tbe opinion in tbat case. Tbe order in tbe instant case is in accord witb tbis principle and is Affirmed. Deven, J., took no part in tbe consideration or decision of tbis case.