* RUFFIN, J., did not sit on the hearing of this case. We are unable to discover any error in the ruling of his Honor, or in the reasons assigned for his conclusion. The motion to discharge the defendant from custody was in effect a motion to vacate the order of arrest, which is the only means provided by which a defendant under arrest under such circumstances can obtain his deliverance, and that motion, as his Honor correctly held, can only be made before judgment, (C. C. P., Sec. 174.) And the ground of the motion that there was no allegation of fraud in the complaint is untenable. It was not necessary that the complaint should contain any allegation of fraud. When the action is like this, for a simple money demand, the grounds for the arrest may be, and most usually are, set forth in an affidavit by the plaintiff, or any other person, that a sufficient cause of action exists, "and that the case is one of those mentioned in section one hundred and forty-nine." C. C. P., Sec. 151.Peebles v. Foote, 83 N.C. 102. *Page 19
The motion to discharge the defendant from custody, being in effect the same as the motion to vacate the order of arrest, the defendant was concluded from renewing that motion, even if it had been made before judgment. The decision upon the first motion was made by a Court of competent jurisdiction upon a substantial right which was reviewable by appeal, but no appeal was taken, and must (4) therefore govern this case as res adjudicata.
There are many motions incidental to the progress of a cause, made to facilitate the trial, that may be made from time to time, the rulings upon which are not the subject of appeal; but when a motion is made involving, as in this case, a substantial right and is reviewable by appeal, but not appealed from, the decision must be as conclusive as a final judgment in the action. Sanderson v. Daily, 83 N.C. 67; Mabry v. Henry, 83 N.C. 298.
A case in point is State v. Evans, 74 N.C. 324, where a prisoner was put in jail for larceny, and the jury not being able to agree were discharged. The prisoner's counsel thereupon moved for his discharge. The motion was refused, and at the next term a similar motion was made and allowed. On the appeal this court said: "So we have the conflicting rulings of two of the judges of the superior courts in the very same case; in fact, one judge reverses the decision of the other judge. How is this unseemly conflict of opinion to be prevented? It can only be done by enforcing the rule res adjudicata. See also 2 Taylor on Ev., Sec. 1513. To the same effect are the cases of Wilson v. Lineberger, 82 N.C. 412, and Jones v.Thorne, 80 N.C. 72.
There is no error. Let this be certified to the superior court of Orange County.
No error. Affirmed.
349; Pasour v. Lineberger, 90 N.C. 161, 162; Wingo v. Hooper, 98 N.C. 484;Patton v. Gash, 99 N.C. 285; Tucker v. Wilkins, 105 N.C. 277; Ashbyv. Page, 108 N.C. 9; Baker v. Garris, 108 N.C. 226; Herndon v. Ins. Co.,108 N.C. 650; Sheldon v. Kivett, 110 N.C. 411; Hopkins v. Bowers,111 N.C. 179; Parker v. McPhail, 112 N.C. 504; Springer v. Shavender,116 N.C. 18; Henry v. Hilliard, 120 N.C. 487; Clement v. Ireland,138 N.C. 139; Herring v. R. R., 144 N.C. 211; Mitchell v. Lumber Co.,169 N.C. 398; Dockery v. Fairbanks, 172 N.C. 530; Mfg. Co. v. Lumber Co.,177 N.C. 407; Jenette v. Hovey, 182 N.C. 32; Revis v. Ramsey,202 N.C. 816; S. v. Lea, 203 N.C. 322; Fertilizer Co. v. Hardee, 211 N.C. 58; In re Adams, 218 N.C. 381; Corporation Com. v. Bank,220 N.C. 51; Neighbors v. Neighbors, 236 N.C. 533. *Page 20