Warden v. . McKinnon

Davis, J., (after stating the case). 1. The first exception that appears in the record was to the refusal of Gilmer, J., to allow the defendants to file an additional answer when the order was made directing the Clerk to proceed with the cause. This was a matter of discretion and not the subject of review in this Court. Reese v. Jones, 84 N. C., 597, citing Boddie v. Woodard, 83 N. C., 2, in which the defendant had sought to protect himself from liability, after the time for answer had elapsed, by a plea of the statute of limitations, and this Court held that it was a matter within the discretion of his Honor, and that in its exercise he could not be reviewed or controlled in this Court. *254 2. The second exception was to the refusal of the Clerk, after the order to proceed was made and after the refusal of the Judge to allow an additional answer to be filed, to permit the defendants to file the answer offered. The question as to whether the Clerk had the power to allow the answer to be filed, is not presented for our consideration, as no objection is based upon that ground, and the answer to the foregoing exception is an answer to this. 3. The third exception was to the refusal bf the Clerk to find the facts as set out. This action was before this Court at February Term, 1886, and all questions then passed upon and adjudicated were .settled, and cannot be re-opened in the manner proposed. Questions of fact had been passed upon by the jury under the charge of the Court below; one of them, and the main, .and we may say the only one sought to be again re-opened in this appeal, was the bar of the statute. Having been settled on that appeal, it was res adjudicata, and is not the subject of our review in this. When a question has once been judicially settled, it cannot again be raised and tried in a different form. Holley v. Holley, 96 N. C., 229; Ogburn v. Wilson, 96 N. C., 210. Affirmed.