Fagan v. McTier

Simmons, Justice. The only complaint made by the bill of exceptions is, that the court erred in striking the plea of the defendant in the court below of a former recovery. The court below held that, where a plaintiff instituted his suit in the county court, and the judgment in that court was for the defendant, and the plaintiff appealed to the superior court, and the case when called in the superior court was dismissed on the plaintiff’s motion, and the plaintiff afterwards brought the same action in the superior court, a plea by the defendant of a former recovery was not a 75 good plea to the second action. We think this ruling of the court below was right. When the plaintiff lost his case in the county court and entered an appeal from the judgment of that court to the superior court, the whole case was transferred from the county court to the superior court. Code, §3627. It was the same in effect as if it had been commenced originally in the superior court. The case was then pending in the superior court. The code, §3447, declares that “ the plaintiff in any action in any court may dismiss his action either in vacation or in term time.” The whole ease having been transferred from the county court to the superior court, under this section of the code, the plaintiff had a right to dismiss it at any time, either in term time or vacation. When it was dismissed on his motion hy order of the court, the whole case went out of court; and section 3446 of the code gives him the right to recommence his suit on the payment of costs. In our opinion, therefore, a defence to the second action, settingup the judgment for the defendant in the comity court in the former .action, was not a good defence to the second action. There is a difference between dismissing a case on .appeal and dismissing the appeal. When the case is ■dismissed, the whole case goes out. When the appeal is dismissed, it is an affirmance of the judgment in the court'helow, “and the rights of all the parties are the same as if no appeal had been entered.” Code, §3628. The code, as above cited, giving the plaintiff the right to dismiss his action at any time, and giving him the right to commence on payment of the costs when it has been dismissed or discontinued, we think it follows that the defendant cannot plead a judgment in the former case, which had been dismissed by the plaintiff' on appeal, to a second suit brought by the plaintiff against the same -defendant for the same cause of action. Judgment affirmed.