The first question presented by this appeal is whether the superior court. should have sustained defendants’ plea of the statute of limitations. The action is clearly barred by subsection 5 of G.S. 1-52 unless saved by the operation of G.S. 1-25 which provides as follows:
“§ 1-25. New action within one year after nonsuit, etc. — If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, if the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis.”
G.S. 1-131 does not apply to this action.
The most recent discussion of the application of G.S. 1-25 is found in the case of
High v. Broadnax,
“We adhere to the general rule that a statute of the forum which permits a suit to be reinstituted within a specified time after *233 dismissal of the original action otherwise than upon its merits has no application when the original suit was brought in another jurisdiction. This rule, however, has no application to an action which was originally instituted in the Superior Court of this State and was thereafter transferred to a United States District Court, where it was later terminated by a nonsuit, or ‘dismissed without prejudice.’ * * *”
Our State Supreme Court has held in several cases that G.S. 1-25 would apply where an action was instituted in a superior court of dhis State and thereafter removed to a federal court sitting in this State and there nonsuited. See
Motor Co. v. Credit Co.,
It appears that the majority of the states do not agree with the liolding in
High v. Broadnax, supra.
See Annot.,
Although in the case before us the action was instituted in a United States District Court sitting in North Carolina, as contrasted to High v. Broadnax, supra, where the suit was instituted in a United States District Court sitting in Virginia, we perceive no distinction as far as the principle of law declared in High is concerned; the United States District Court is “another jurisdiction” irrespective of whether it sits in Greensboro, N. C, or Danville, Va. Hence, we hold that the present action was barred by the statute of limitations as G.S. 1-25 is not applicable, and the order of Judge Hall concluding otherwise was error.
The next question is whether the plea of res judicata was properly sustained.
The law is clear that if the allegations of the first complaint and of this complaint are substantially identical, then the plea must be sustained.
Davis v. Anderson Industries,
It is true that in her complaint filed in the present action plaintiff has enlarged upon the allegations contained in the former complaints, but we think the complaints are “substantially identical.”
*234
The opinion by Rodman, J., in the former appeal
(Cobb v. Clark,
We hold that the trial court properly sustained the plea of res judicata.
Defendants assign as error the failure of Judge Bailey to sustain their demurrer to plaintiff’s complaint. In view of our holdings on the other questions presented, we deem it unnecessary to pass upon this assignment of error.
Defendants also assign as error the failure of Judge Hall to grant their prayer for injunctive relief in the nature of a bill of peace. We construe defendants’ brief to say that they abandoned this assignment of error, therefore, it will not be discussed.
This action is remanded to the Superior Court of Alamance County for entry of judgment not inconsistent with this opinion.
Plaintiff’s appeal ■ — • Affirmed.
Defendants’ appeal — Error and remanded.