Sutton v. Sutton

197 S.E.2d 9 (1973) 18 N.C. App. 480

Marshall Bryan SUTTON
v.
Claude S. SUTTON, Jr.

No. 7318DC290.

Court of Appeals of North Carolina.

June 13, 1973.

Smith, Moore, Smith, Schell & Hunter by Jack W. Floyd, Greensboro, for plaintiff appellant.

Cahoon & Swisher by Robert S. Cahoon, Greensboro, for defendant appellee.

HEDRICK, Judge.

The correctness of the order appealed from depends on the effect given the judgment of voluntary dismissal with prejudice dated 21 May 1971.

In Collins v. Collins, N.C.App., 196 S.E.2d 282 (1973), Judge Britt, writing for this court, stated:

"Under the former practice a judgment of voluntary nonsuit terminated the action and no suit was pending thereafter in which the court could make a valid order. 7 Strong, N.C. Index 2d, Trial, § 30, p. 317. We think the same rule applies to an action in which a plaintiff takes a voluntary dismissal under G.S. § 1A-1, Rule 41(a)(1)."

Regardless of what name we apply to the order dated 21 May 1971, the effect thereof was to terminate the action and when plaintiff's motion in the cause was made, no action was pending wherein the court could enter a valid order. The order denying the motion is

Affirmed.

BRITT and BALEY, JJ., concur.