It was said in Dependents of Poole v. Sigman, 202 N. C., 172, 162 S. E., 198, tbat if tbe facts found by the Industrial *803Commission are jurisdictional, and there is no evidence tending to support the findings, the award should be set aside and vacated.
We do not find on the record evidence sufficient to support the conclusion that the parties to the present proceeding are subject to the provisions of the Workmen’s Compensation Act. Chap. 120, Public Laws, 1929; Aycock v. Cooper, 202 N. C., 500, 163 S. E., 569.
It is provided by section 14 of said act that the same shall not apply to “casual employees, . . . nor to any person, firm or private corporation that has regularly in service less than five employees in the same business within this State, unless such employees and their employer voluntarily elect, in the manner hereinafter specified, to be bound by this act.”
The evidence of the employer is, that “I have employed three men other than myself.” This is less than five. The testimony of the witness Smoot that “the other employees” (in addition to the deceased and himself who were working with Mr. Johnson at the time) “were on their vacations,” does not show that the employer had “regularly in service as many as five employees in the same business within this State,” so as to bring the parties, nothing else appearing, under the provisions of the Workmen’s Compensation Act. C. S., 8081 (k) ; Hanks v. Utilities Co., 204 N. C., 155, 167 S. E., 560. And it is not contended that they have voluntarily elected to be bound by the act in the manner specified therein. Southerland v. Harrell, 204 N. C., 675, 169 S. E., 423.
It would seem, therefore, that the demurrer to the jurisdiction is well taken. Barham v. Perry, ante, 428.
In opposition, however, the plaintiffs insist, first, that the evidence is sufficient to support the finding of the Commission, and, second, “but if the court should be of opinion that the record is silent on the jurisdictional question, then the cause should be remanded to the Industrial Commission for a finding on this particular point.” Butts v. Montague Bros., 204 N. C., 389, 168 S. E., 215; Francis v. Wood Turning Co., 204 N. C., 701; Hollowell v. Dept. Con. and Dev., 201 N. C., 616. The record is neither sufficient nor silent on the point. It shows that the jurisdictional question was the subject of inquiry before the hearing commissioner and that his finding was approved by the full Commission. Plaintiffs have had their day in court, and they have failed to make out their ease. There was no motion in the Superior Court to remand when the jurisdiction of the Industrial Commission was first challenged. Butts v. Montague Bros., supra. Nor is the suggestion made here except as a dernier ressort. Ordinarily, parties to a suit are allowed but “one bite at the cherry.” Having tried and failed, they are not entitled, as a matter of right, to go back and “mend their licks.” Furthermore, it seems quite improbable that the plaintiffs would be able to show jurisdic*804tion, even if given another chance, unless the employer, who appears to have qualified as administrator of the employee’s estate and is now appealing from the judgment, should change his testimony. There comes a time when litigation should end.
Speaking to a similar situation in Trust Co. v. Leggett, 191 N. C., 362, 131 S. E., 752, Adams, J., delivering the opinion of the Court, observed:
“The plaintiff says the question of jurisdiction was not raised in the trial court and should not now be considered; but it has been held that a motion to dismiss for want of jurisdiction may be made for the first time in the Supreme Court. Tillery v. Benefit Society, 165 N. C., 262; McDonald v. MacArthur, 154 N. C., 122.” See, also, Finley v. Finley, 201 N. C., 1, 158 S. E., 549; Power Co. v. Peacock, 197 N. C., 735, 150 S. E., 510.
Jurisdiction, not given by law, may not be conferred on a court or commission, as such, by waiver or consent of the parties, Reid v. Reid, 199 N. C., 740, 155 S. E., 719; Saunderson v. Saunderson, 195 N. C., 169, 141 S. E., 572; Springer v. Shavender, 118 N. C., 33, 23 S. E., 976, 54 A. S. R., 708, 33 L. R. A., 775; 7 R. C. L., 1039.
Reversed.