ANNYE U. ALEXANDER v. WILL ED THOMPSON et al.
(Filed 26 June, 1935.)
1. Judgments L f—
It is not error for tlie court to dismiss plaintiff’s action upon his finding, unchallenged, that the matters sought to be litigated therein are res judicata.
2. Same — Dismissal of action on plea of res judicata is error where defendant is granted affirmative relief upon prayer in answer.
When plaintiff’s suit to restrain foreclosure is dismissed upon the plea of res judicata, and defendants’ cross-action for foreclosure in equity is allowed, and a commissioner appointed to sell the lands and report the sale for confirmation, it is error to defendants’ prejudice for the court to dismiss the action, and the action should be retained for further orders.
Appeal by plaintiff from Oranmer, J., 12 October, 1934. From DURHAM.
Civil action to restrain foreclosure under power of sale in deed of trust, and for general relief.
In answer, tbe defendants plead res judicata, and by way of further plea ask for foreclosure in equity.
On tbe bearing, tbe court found that: (1) "Tbe subject-matter of tbis action has previously been adjudicated in separate and distinct judgments . . . ádversely to tbe plaintiff;” (2) granted tbe defendants’ prayer for foreclosure in equity; (3) appointed commissioners to make sale; (4) required that they report sale to- the court for confirmation; and (5) dismissed tbe action.
Plaintiff appeals and assigns as error “tbe action of tbe court in dismissing tbe action.”
8. J. Bennett for plaintiff.
Bryant & J ones for defendants.
Stacy, C. J.
Tbe dissolution of tbe temporary restraining order is not challenged by tbe appeal; nor is tbe foreclosure in equity questioned; tbe only assignment of error relates to tbe dismissal of tbe action.
*354There was no error in dismissing plaintiff’s alleged cause of action upon the finding, which is unchallenged, that the matters therein sought to be litigated are res judicata. 14 R. C. L., 469.
There was error to the prejudice of the defendants in dismissing the action after granting their prayer for foreclosure in equity. To this end the cause should have been retained for further orders. Warlick v. Reynolds, 151 N. C., 606, 66 S. E., 657.
Modified and affirmed.