#### MARY BELLE BROWN v. S. A. JOHNSON.

(Filed 27 February, 1935.)

1. Judgments L a — Judgment of nonsuit is bar to second action upon substantially identical allegations and evidence.

Judgment dismissing an action instituted after judgment of nonsuit in a prior action between tbe same parties is properly allowed upon tbe plea of res juO/icata where it appears tbat tbe allegations and evidence in both actions are substantially identical, and tbat tbe only variance is tbat tbe allegations and evidence in tbe second action are more elaborate and cumulative.

S. Appeal and Error E a—

Where no summons appears in tbe record and there is nothing to show that tbe term of court was regularly held, or tbat tbe cause was properly constituted in court, tbe appeal is subject to dismissal under Rule 19.

Appeal from Sinclair, J., at June Term, 1934, of ORANGE.

Affirmed.

Tbis is an appeal by tbe plaintiff, in a civil action to recover a penalty of $1,550 for tbe collection of usury, from a judgment rendered upon motion of tbe defendant to dismiss tbe action for tbat tbe merits thereof bad been determined adversely to tbe plaintiff by a judgment of nonsuit granted in a former action based upon substantially tbe same allegations and evidence, wbieb judgment was an estoppel by way of res adjudicata in tbis action.

B. T. Giles for plaintiff appellant.

Graham <& Sawyer for defendant appellee.

SoheNce, J.

A perusal of tbe pleadings and of tbe evidence in tbe former ease and in tbe instant case leads us to tbe conclusion tbat identically tbe same issues arise upon tbe pleadings in tbe respective actions. Tbe parties are tbe same. Tbe allegations and evidence are substantially tbe same, tbe only variance being tbat in tbe instant case tbey are more elaborate and cumulative. Tbe variance is of degree ratber than of substance, there being no material facts tbat were provable under tbe instant pleadings tbat were not provable under tbe former, and no material facts supported by evidence in tbe instant ease tbat were not supported by evidence in tbe former case. His Honor, therefore, was correct in bolding tbat tbe judgment in tbe former case, from which no appeal was taken and which remains unimpeacbed, was res adjudicata, and tbat tbe plaintiff was estopped thereby to prosecute tbis action. Hampton v. Spinning Co., 198 N. C., 235; Ferguson v. Spinning Co., ante, 496, and cases there cited.

*808While we have considered this case upon its merits, we are constrained to call attention to the fact that the appeal might well have been dismissed under Rule 19 of this Court, since no summons appears in the record of the case on appeal, and there is nothing to show that the term of court was regularly held, or that the cause was properly constituted in court. Sanders v. Sanders, 201 N. C., 350; Pruitt v. Wood, 199 N. C., 788.

Affirmed.