#### W. J. MUNDEN v. L. H. WINDHOLZ and M. S. HAWKINS, Receivers for NORFOLK SOUTHERN RAILROAD COMPANY, a Corporation.

(Filed 12 October, 1938.)

Appeal by plaintiff from Parker, J., at February Term, 1938, of PasquotaNK.

Affirmed.

Tbis is an action brought by plaintiff against defendant for false arrest and imprisonment. Tbe action was removed for trial to tbe U. S. District Court for tbe Eastern District of North Carolina. At tbe July Term, 1937, tbe following judgment was rendered by Judge Meekins:

“Tbis cause coming now to be beard, and at tbe close of all tbe testimony tbe defendants renewed their motion for judgment as of nonsuit and tbe court intimated its willingness to grant said motion. Whereupon plaintiff asked leave of tbe court to take a voluntary nonsuit, and upon motion to that effect tbe same was allowed, and judgment of voluntary nonsuit is accordingly entered herein.”

Tbe action was brought thereafter in tbe Superior Court of North Carolina and to acquire jurisdiction tbe demand for damages was reduced to $2,500. Tbe judgment of Parker, J., in tbe court below, in part, is as follows:

“That if tbis action is not res adjudicata that tbe plaintiff has not offered sufficient evidence to entitle him to go to tbe jury and that tbe case, in any event, if tbe plea of res adjudicata is not tenable, should be nonsuited, it is now, therefore, ordered and decreed by tbe court that tbe action be, and it hereby is dismissed and nonsuited, and tbe plaintiff is taxed witb tbe costs.”

*830 J. Henry LeRoy and J. H. Hall for plaintiff.

J. Kenyon Wilson for defendant.

Per Curiam.

From a careful review of the evidence "on the whole record, we do not think that the plaintiff has offered sufficient evidence to be submitted to a jury. The judgment of the court below is

Affirmed.