Eureka Lumber Co. v. Harrison

Walker, J. It appears from the record that the plaintiff brought an action against the defendants for a trespass committed on its land in cutting trees. At the conclusion of the testimony the court, on motion of the defendants, adjudged that a nonsuit be entered against the plaintiff under the statute (Revisal, sec. 539). The plaintiff appealed from this judgment, but the appeal, not having been duly prosecuted, was dismissed in this Court, under Rule 17. The plaintiff then brought this action, for the same trespass, within one year after the other action and the appeal therein had been dismissed. The action was also dismissed in the court below, and the injunction formerly issued was vacated, upon the ground that the nonsuit in the former action was a complete bar to the further prosecution of this action. ' The question, therefore, is whether a second suit for the same cause of action will lie under such circumstances. We decided in Hood v. Telegraph Co., 135 N. C., 622, where the *334 same point was presented, that a second action will lie, although a nonsuit had been entered against the plaintiff, on the merits, in a former suit for the same cause of action and upon the same state of facts. This ruling is sustained in the following cases: Meekins v. Railroad, 131 N. C., 1; Prevalt v. Harrelson, 132 N. C., 250; Evans v. Alridge, 133 N. C., 378; Nunnally v. Railroad, 134 N. C., 755; Tussey v. Owen, 147 N. C., 335; .Henderson v. Eller, 61 S. E. (N. C.), 446. We will not discuss the suggestion in the plaintiff’s ■ brief that there is an additional cause of action stated in the complaint in this action, as it is not necessary to do so. If that be correct, the ruling of the court was clearly erroneous, no proof having been taken in this case. There was error in dismissing the action. Reversed.