R. Frazier PEMBERTON and Mrs. Marguerite Pemberton Harrelson, Guardians of W. S. Pemberton
v.
J. L. LEWIS, Trading as Lewis Funeral Home, and Richard Gordon.
No. 597.
Supreme Court of North Carolina.
November 30, 1955.*246 Armistead W. Sapp, Greensboro, for appellants.
Frazier & Frazier, Greensboro, for appellees.
DENNY, Justice.
It seems to be settled in this jurisdiction that a judgment of nonsuit is not res judicata as to a second action unless it is made to appear that the second action is between the same parties, on the same cause of action, and upon substantially the same evidence. Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82; Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90; Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266.
Ordinarily, a motion to dismiss an action on the plea of res judicata will not be allowed on the pleadings alone. Craver v. Spaugh, supra; Buchanan v. Oglesby, 207 N.C. 149, 176 S.E. 281; Dix-Downing v. White, 206 N.C. 567, 174 S.E. 451; Batson v. City Laundry Co., supra; Hampton v. Rex Spinning Co., supra.
Moreover, the court below found as a fact that the allegations in the complaint in the present action are substantially different in material aspects from the allegations of the complaint in the former action. Furthermore, the evidence to be considered on such motion may not be limited to the evidence that was adduced in the former trial, but contemplates a consideration of all the evidence adduced in support of the allegations of the respective complaints. It is only by a consideration of all such evidence that the court may determine whether or not the evidence in both trials was substantially the same. Therefore, we think the motion interposed below was prematurely made. Buchanan v. Oglesby, supra. Likewise, we hold that this appeal is premature and should be dismissed.
Appeal dismissed.