Thompson Ex Rel. Thompson v. Hamrick , 23 N.C. App. 550 ( 1974 )

209 S.E.2d 305 (1974) 23 N.C. App. 550

Ricky Ray THOMPSON, a minor by his guardian ad litem, Ruby Thelma Thompson, Plaintiffs,
v.
Mary Moore HAMRICK, Defendant and Third-Party-Plaintiff,
v.
Robert Junior THOMPSON and Bobby Ray Thompson, Third-Party-Defendants.

No. 7429SC654.

Court of Appeals of North Carolina.

November 6, 1974.

Jones & Jones by B. T. Jones, Forest City, for plaintiff-appellant.

Hamrick & Bowen by James M. Bowen, Rutherfordton, for defendant-appellee.

VAUGHN, Judge.

Defendant's plea of res judicata in this case should have been sustained only if there was an identity of parties, subject matter and issues with the earlier case. The minor plaintiff in this case was neither a party nor one in privity with a party to the other action and, of course, he had no control over the other lawsuit. That his father was a party in the other action is irrelevant to this minor's right to prosecute his separate cause of action. The judgment from which plaintiff appealed is contrary to law and must be reversed.

Reversed.

CAMPBELL and BRITT, JJ., concur.