Motsinger v. . Hauser

Civil action for slander and malicious prosecution.

From a judgment of nonsuit, entered on motion of defendants at the close of plaintiff's evidence, the plaintiff appeals. It is conceded that plaintiff's cause of action is barred by the statute of limitations unless the identity of the present suit with one previously entered and nonsuited, in which no complaint was ever filed, can be shown by parol, so as to bring it under the saving provision of the statute allowing a plaintiff, upon payment of costs, to commence a new action within a year after such nonsuit in the original action. C. S., 415. In other words, as no complaint was filed in the first action, so as to enable the court to inspect it and thus determine its character, can the plaintiff show by parol that the present action is but a continuation or renewal of the first, or that it is "the same candle blown out and lighted again"? We think not. The question is one of law for the court on comparison of the pleadings, and not one of fact for the jury. This was the holding in Youngv. R. R., 189 N.C. 238, 126 S.E. 600; and on authority of the Youngcase, the present judgment must be upheld.

Affirmed.