38 S.E. 253 | N.C. | 1901
The complaint, after setting out the cause of action, avers that a previous action, which had been brought by *60 plaintiff against defendant demanding $20,000 damages for the same cause of action, had been removed into the Federal Court, and that at the following term of that Court "the plaintiff, with consent of defendant's attorney, agreed to take a nonsuit in the Federal Court provided it should simply terminate the action for the $20,000 claim, and that plaintiff might then bring action in the State Court anew for $2,000. Hence this action."
The demurrer admits this averment. It was therefore properly overruled. Indeed, whether the nonsuit was taken (81) with or without consent of the defendant, the plaintiff had a right to bring this new action within one year thereafter by the express terms of our statute. Clark's Code (3 Ed.), secs. 166, 142, and cases there cited.
We are referred by defendant's counsel to R. R. v. Fulton,
Affirmed.