#### C. UTLEY PRIDGEN v. NETTIE INMAN LYNCH.

(Filed 24 May, 1939.)

1. Courts § 2<J—

A judgment of a justice of the peace is vacated by appeal, and thereupon the action is pending in the Superior Court for trial de novo. C. S., 660.

2. Judgments § 33c—

Where, upon appeal from a justice of the peace, the Superior Court dismisses the action, but not the appeal, by consent of the parties and without prejudice to their rights, such judgment will not bar a subsequent action between the parties involving the same subject matter.

Appeal by plaintiff from Cranmer, J., at November Term, 1938, of Columbus.

Reversed.

E. M. Toon and B. G. Grady for plaintiff.

Lyon & Lyon for defendant.

DeviN, J.

This was an action by a farm tenant to recover damages from his landlord for wrongful interference with his crop, and also for malicious abuse of process in procuring his removal from the land. The defendant pleaded estoppel by judgment. The court below held the plaintiff estopped by the judgment rendered in a summary ejectment proceeding which had been instituted against him by the present defendant, and thereupon dismissed the action. The plaintiff appealed to this court, assigning error in the judgment predicated upon this ruling.

The facts relative to the former suit, as disclosed by the record, may be summarized as follows: In January, 1936, the plaintiff Pridgen, pursuant to contract, moved upon defendant’s land and began the cultivation of a crop thereon. May 18, 1936, defendant Lynch instituted before a justice of the peace summary ejectment proceedings against him, alleging failure to perform his rental contract. Judgment was rendered by the justice of the peace in favor of the defendant herein and against Pridgen. The plaintiff Pridgen gave notice of appeal and *673tbe appeal was duly docketed in tbe Superior Court of Columbus County. Tbe plaintiff Pridgen, boweyer, being unable to give bond in tbat case, was dispossessed. Subsequently at November Term, 1937, of tbe Superior Court, in the summary ejectment case entitled “Nettie Inman Lynch v. Utley Pridgen,” then pending, tbe judge entered judgment dismissing tbe action. Tbe pertinent portion of tbe judgment was in these words: “Thereupon, by consent of tbe parties, and without prejudice to tbe rights of the plaintiff or tbe defendant, it is considered, ordered and adjudged tbat this action be and tbe same is hereby dismissed.”

It is apparent tbat this judgment is insufficient to support tbe plea of res judicata, and tbat tbe court below was in error in bolding tbe plaintiff estopped thereby to maintain this action. The judgment of tbe justice of tbe peace was vacated by tbe appeal, and tbe action was pending in the Superior Court for trial de novo. C. S., 660, Bagging Co. v. R. R., 184 N. C., 73, 113 S. E., 595. Tbe Superior Court dismissed tbe action — not tbe appeal — without prejudice to tbe rights of tbe parties. In these respects tbe facts here are unlike those upon which tbe decision in Savage v. McGlawhorn, 199 N. C., 427, 154 S. E., 673, was based.

We conclude tbat tbe judgment of tbe court below sustaining tbe plea of res judicata and dismissing tbe action, must be reversed.

Reversed.