#### MRS. CLARA BOURNE, Administratrix of the Estate of FREDERICK T. BOURNE, Deceased, v. SOUTHERN RAILWAY COMPANY.

(Filed 20 September, 1944.)

1. Trial § 22a: Judgments § 33a—

Although a judgment of nonsuit does not necessarily decide the merits of the cause of action, it is a final judgment in that it terminates the action. If there is no appeal or if the nonsuit is sustained on appeal, plaintiff, if he would prosecute his claim further, must institute a new action. G. S., 1-25.

2. Trial § 25—

When a defendant, at the close of plaintiff’s evidence, moves for judgment dismissing the action as of nonsuit, he in effect submits to a voluntary nonsuit on any counterclaim set up by him.

Appeal by defendant from Nettles, J., at April Term, 1944, of Bira-combe.

Affirmed.

Civil action under the Federal Employers’ Liability Act for damages for wrongful death heard on motion to dismiss for that another action by the same parties for the same cause of action is now pending in the same court.

The plaintiff instituted suit against the defendant in the Superior Court of Buncombe County, 16 October, 1941, and filed complaint setting-out a cause of action for damages for wrongful death arising out of the negligence of the defendant.

*445Defendant answered denying negligence on its part and pleading a counterclaim, alleging it bad been damaged by tbe negligence and wrongful conduct of plaintiff’s intestate while wrongfully acting as engineer. Plaintiff replied thereto.

The case was heard before Clement, J., at the April, 1943, Term of the Superior Court of Buncombe County. At the close of the evidence for plaintiff, the defendant moved for judgment as in case of nonsuit. The motion was sustained and judgment was entered “that the action be, and the same is hereby nonsuited and dismissed at the cost of the plaintiff.” The judgment contains further provision as follows: “The Court of its own motion orders a mistrial as to the counterclaim and continues the same.”

The plaintiff excepted and appealed to the Supreme Court, and her appeal was dismissed at the Fall Term, 1943.

The plaintiff, on 5 October, 1943, instituted this action against the defendant, setting out in her complaint substantially the same cause of action as alleged in the original suit. The defendant answered and pleaded: (a) the pendency of another action, and move for dismissal for that reason, and (b) res adjudicata by virtue of the judgment in the first cause. It also denied any negligence on its part and reasserted its counterclaim for damages sustained.

The motion of defendant to dismiss the action for that there is another action pending came on to be heard in the court below and was overruled. Defendant excepted and appealed.

Jordan •& Horner and Williams ■& Coche for plaintiff, appellee.

W. T. Joyner and Jones, Ward & Jones for defendant, appellant.

Barnhill,. J.

Is the original action, non constat the judgment of nonsuit, still pending in the Superior Court of Buncombe County ? The court below answered no. We concur.

“Nonsuit” is a process of legal mechanics. The case is chopped off. Corcoran v. Transportation Co., 57 S. E., 962. It is a judgment of dismissal. Anderson v. Distributing Co., 55 S. W. (2d), 688. It dismisses the action. Cyclopedic Law Dic., 2nd Ed. (Callaghan). Although it does not necessarily decide the merits of the cause of action, it is a final judgment in that it terminates the action itself.

“Nonsuit is the name of a judgment given against the plaintiff when he is unable to prove a case . . .” Cooper v. Crisco, 201 N. C., 739, 161 S. E., 310. “A nonsuit is but like the blowing out of a candle, which a man at his own pleasure may light again.” Hickory v. R. R., 138 N. C., 311, 50 S. E., 683. If there is no appeal or if the nonsuit is *446sustained on appeal, plaintiff, if be would prosecute bis claim further, must institute a new action. G. S., 1-25, C. S., 415.

Tbe words “new action,” “new suit,” and “original suit” as used in tbis statute, Gr. S., 1-25, clearly import tbat a judgment of nonsuit terminates tbe original action. They indicate a difference in tbe two actions tbougb tbe causes may be identical. Cooper v. Crisco, supra. Tbe distinction is observed in decisions referring to tbe causes of action in tbe respective suits, to a restatement of tbe same cause in tbe latter action, and to “another action,” “second action,” tbe “former action,” and a “subsequent action.” See Cooper v. Crisco, supra, and cases cited.

Tbe fact tbat defendant bad pleaded a counterclaim does not affect tbe finality of tbe judgment. When tbe defendant, at tbe close of tbe evidence for plaintiff, moved for judgment dismissing tbe action as of nonsuit, it in effect submitted to a voluntary nonsuit on its counterclaim. Gruber v. Ewbanks, 199 N. C., 335, 154 S. E., 318.

It cannot put its adversary out of court and at tbe same time retain tbe cause in court. Morse v. Turner, 92 S. E., 767. It elected to move for a dismissal of tbe action by judgment of nonsuit and it announced at tbe time tbat upon tbe granting of tbe motion it would submit to voluntary nonsuit on its counterclaim. Tbe motion was granted and judgment of dismissal was entered. Thus plaintiff’s action and defendant’s counterclaim fall together.

Tbe court may have committed error in dismissing tbe action while tbe counterclaim was pending. If so, it was error and no more. Tbe judgment was entered at tbe instance and upon tbe motion of defendant. It is not now in a position' to insist tbat tbe action is still pending.

While there is some division of opinion on tbis question, tbe weight of authority is in accord with this conclusion. Morse v. Turner, supra; Lumber Co. v. Dalrymple, 21 Atl., 949; McClellan’s Adm’r v. Troendle, 99 S. W., 329; Rice-Stix Dry Goods Co. v. Friedlander Bros., 122 S. E., 890; Hodges v. GMAC, 141 So., 783; Bell v. Leiendecker, 170 So., 386; Finch v. Ekstrom, 1 Pac. (2d), 516; Whitaker v. Wright, 129 So., 889; Crocker v. Chillingworth, 143 So., 346; McMillan v. Lorimer, 107 So., 239; Picard Const. Co. v. Board of Com’rs., 109 So., 816; Erskine v. Gardiner, 110 So., 97; Miller v. Davis, 217 N. W., 904; Chavez v. Ade, 34 Pac. (2d), 670; Gafford v. Twitty, 115 S. E., 105; State v. C. S. Jackson & Co., 82 So., 213; Herring-Hall-Marvin Safe Co. v. Purcell Safe Co., 158 Pac., 477.

Tbe judgment below is

Affirmed.