#### CARRIE STEWART CHAPPEL v. C. E. EBERT and Wife, LISETTA EBERT, and R. L. BRINSON, Trading as SOUTHERN OIL COMPANY.

(Filed 9 April, 1930.)

1. Judgments L a — Judgment of nonsuit on merits is not a bar to subsequent action unless evidence is substantially the same.

It is not enough to sustain a plea of res judicata that a former action between the same parties on the same subject-matter was nonsuited on its merits, but, in addition, the evidence in the second action must be substantially the same as in the first in order for the judgment in the first to be a bar to the second.

2. Courts B e — Appeal from county court may be dismissed for failure to serve case on appeal unless error appears on face of record.

On an appeal from a County Court created by chapter 520, Public-Local Laws of 1915, amended by chapter 18, Public-Local Laws of 1925, to the Superior Court, a “statement of case on appeal” is necessary, and where the appellant fails to serve his case on appeal, the appeal is subject to dismissal unless some error appears on the face of the record proper, and where it appears from the record that the action was dismissed in the County Court upon the plea of res judicata for that an action between the same parties on the same subject-matter had been nonsuited on its merits, and there is no finding that the evidence in the second action was substantially the same, the judgment of the Superior Court remanding the cause to the County Court for trial will be affirmed on appeal to the Supreme Court.

Appeal by defendants from Finley, J., at November Term, 1929, of Foestth.

Civil action in ejectment, dismissed in Forsyth County Court 29 April, 1929, and heard on plaintiff’s appeal to the Superior Court of Forsyth *576County at tbe November Term, 1929, by Finley, J., wbo reversed tbe judgment of tbe County Court and remanded tbe cause for a new bearing.

There was a motion made by defendants before McElroy, J., at tbe September Term, 1929, Eorsytb Superior Court, to dismiss plaintiff’s appeal for failure to serve statement of case on appeal as required by law. Tbis motion was overruled on tbe ground that as tbe plaintiff’s appeal was from a judgment sustaining tbe defendants’ plea in bar, res judicata, determined alone by tbe court records, no statement of case on appeal was necessary. Defendants duly noted an exception to tbis ruling.

Tbe judgment of tbe County Court was to tbe effect that as tbe plaintiff bad instituted a prior suit against tbe same defendants, concerning tbe same subject-matter, wbicb was nonsuited, July Term, 1926, upon tbe merits of tbe cause, be is now estopped or barred, by judgment in tbe former suit, from maintaining tbe present action.

From tbe judgment of Finley, J., reversing tbe judgment of tbe County Court and remanding tbe cause for a new trial in tbe County Court, tbe defendants appeal, assigning errors.

Ratcliff, Hudson ■& Ferrell and J obn J. Ingle for plaintiff.

Alexander & Butler for defendants.

Stacy, O. J.

It is contemplated by tbe act creating tbe Eorsytb County Court, chapter 520, Public-Local Laws, 1915, amended by chapter 18, Public-Local Laws, 1925, that in appeals from said County Court to tbe Superior Court of Eorsytb County, there shall be “a statement of case on appeal,” for it is provided that such appeals may be taken “in tbe same manner and under tbe same requirements as are now provided by law for appeals from tbe Superior Court to tbe Supreme Court.” Tbe plaintiff’s appeal, therefore, from tbe judgment of tbe County Court to tbe Superior Court of Eorsytb County was subject to be dismissed for failure to serve statement of case on appeal, unless some error appeared on tbe face of tbe record proper, wbicb Judge McElroy perhaps thought might be tbe case, as be declined to dismiss tbe appeal, and wbicb Judge Einley found to be tbe case when be came to pass upon tbe appeal. In tbis view, both rulings are correct.

Tbe judge of tbe County Court found tbe facts and embodied them in bis judgment of dismissal. It is not enough, to sustain a plea of res judicata, that tbe former suit between tbe same parties, concerning tbe same subject-matter, should have been nonsuited on its merits, but, in addition, tbe evidence in tbe two cases must be tbe same or substantially tbe same. Hampton v. Spinning Co., ante, 235, 151 S. E., *577 266. In this respect, the judgment of the County Court was defective, and the judgment of the Superior Court remanding the cause for another hearing is correct.

Note, the judgment pleaded as an estoppel was not rendered on facts agreed or admitted or established by a verdict (Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535, Hardison v. Everett, 192 N. C., 371, 135 S. E., 288), but is one of nonsuit.

Affirmed.