#### C. W. BUCHANAN et al. v. JOHN M. OGLESBY et al.

(Filed 10 October, 1934.)

Judgments L f—

The refusal of a motion to dismiss an action on the plea of res judicata, will be affirmed on appeal where no facts as to the identity of the actions are found by the trial court and none appear from an inspection of the record.

Appeal by defendants from Finley, J., at June Term, 1934, of McDowell.

Affirmed.

Tbe following judgment was rendered in tbe court below: “This cause coming on to be beard before bis Honor, T. B. Finley, judge bold-ing tbe courts of tbe Eigbteentb Judicial District, and being beard at tbe June Term, 1934, of tbe Superior Court of McDowell County, North Carolina, and after a jury bad been sworn and impaneled, tbe pleadings read, tbe defendants, tbrougb tbeir attorneys, move for judgment to dismiss tbe action for that it was res judicata, and from tbe records and admissions of counsel, tbe court finds tbe following facts:

“(1) That on 10 December, 1931, tbe First National Bank of Marion, North Carolina, and other creditors of tbe D. E. Hudgins estate instituted a proceeding against tbe defendants, John M. Oglesby, Carter Hudgins, and D. E. Hudgins, Jr., co-executors of tbe estate of D. E. Hudgins, deceased, under section 110 of the Consolidated Statutes of North Carolina, asking for a final settlement of said estate, in which proceeding a notice was duly given to all creditors of said estate to file evidence of any claim that they might have against tbe defendants, who were co-executors of tbe said estate, and that tbe claim of Chesley ~W. Buchanan and wife, Attie A. Buchanan, was presented to tbe defendants as co-executors of said estate for tbe return of a certain life insurance policy on tbe life of tbe said Chesley W. Buchanan, and that said executors disputed said claim on 20 January, 1932, in a written statement filed by said co-executors with tbe clerk of Superior Court of McDowell County, North Carolina, and that tbe plaintiff, pursuant to notice issued to them by tbe clerk of Superior Court of said county on 22 January, 1932, filed a complaint in said proceeding under section 119 of tbe Consolidated Statutes, 29 January, 1932, after they bad caused summons to be issued for tbe defendants on 29 January, 1932, which, with tbe complaint of tbe plaintiffs therein, was duly served on tbe defendants Carter Hudgins, co-executor of tbe D. E. Hudgins estate, on 29 January, 1932, and on tbe defendant D. E. Hudgins, Jr., co-executor of said estate, on 5 February, 1932, and on tbe defendant John M. Oglesby, co-executor of said estate, on 20 February, 1932, to which complaint tbe defendants filed tbeir answer on 25 February, 1932.

*150“(2) That said cause came on for trial at the June Term, 1932, of said court, before his Honor, W. F. Harding, judge presiding, and after the jury had been sworn and impaneled, and the pleadings read, the defendants offered the court summonsi in said action for the purpose of showing when the action was commenced, and moved for judgment of nonsuit upon the pleadings for that the plaintiffs’ cause of action was barred by the three-year statute of limitation, upon the allegations of the complaint and the inspection of the record, to wit, the summons, the court rendered a judgment of nonsuit against the plaintiffs, from which the plaintiffs appealed, but nu appeal was perfected by the plaintiffs.

“(3) That on 21 July, 1932, the plaintiffs, Ohesley W. Buchanan and wife, Attie A. Buchanan, who are admitted to be the same Chesley W. Buchanan and Attie A. Buchanan who were plaintiffs in the former suit, sent out another summons against the same defendants, which summons, with the complaint of the plaintiffs therein, was duly served on the defendants Carter Hudgins and D. E. Hudgins, Jr., co-executors of the D. E. Hudgins estate, on 23 July, 1932, and that alias summons in said action was duly served on John M. Oglesby, co-executor of said estate, on 28 July, 1932, to which complaint the defendants, on 15 August, 1932, duly filed their answer, and upon plaintiffs’ said complaint and answer of the defendants the cause came on to be tried at the June Term, 1932, of said court.

“(4) That after a jury had been chosen, sworn and impaneled, the pleadings read, including former pleadings, the defendants, through their counsel, move on the pleadings, and on the judgment in the former action, to dismiss the action for that it is res judicata; the court being of the opinion that the motion of the defendants, through their counsel, to1 dismiss this action upon the plea of res judicata is prematurely and inadvertently made.

“Whereupon, the motion of the defendants, through their counsel, to dismiss the action is overruled, and it is considered, adjudged and decreed by the court that the plaintiffs are not estopped to prosecute this action by the former judgment.

T. B. EiNley, Judge Presiding.”

Defendants filed but one exception, and that was to the judgment of the court denying defendants’ motion of nonsuit, and assigned as error the court’s failure to dismiss the action on the grounds that it is res judicata, and appealed to the Supreme Court.

W. R. Chambers for plaintiff.

Watson & Fouts and Carter Hudgins for defendants.

Pee Cubiam.

No facts were found by the trial judge and none appear from an inspection of the record, taking this case outside of the *151ruling in Batson v. Laundry Co., 206 N. C., 371, at p. 372, where it is said: “In the case at bar, the trial judge beard no evidence and found no facts. Hence, it does not appear whether the merits of the present case are substantially identical to the former case or not. Therefore, the Court is of the opinion that the judgment dismissing the action upon the plea of estoppel was prematurely and inadvertently made.” Dix-Downing v. White, 206 N. C., 567.

The judgment of the court below is

Affirmed.