Opinion
(Filed 20 November, 1935.)
1. Pleadings E a: Judgments L a —
The denial of a motion to amend the complaint by adding two causes of action nonsuited on the evidence upon a former trial is properly entered upon the grounds of res judicata.
2. Pleadings E c —
The trial court has the discretionary power to allow a complaint to be amended by adding two new causes of action based upon the same subject of action as the original cause.
APPEALS by plaintiff and defendant Lance Packing Company from McElroy, J., at April Term, 1935, of MECKLENBURG.
Carswell Ervin for plaintiff.
Tillett, Tillett Kennedy for defendant Packing Company.
Civil action for slander, tried originally at May Term, 1934, appeal by defendant, and new trial ordered 28 January, 1935, opinion reported in 207 N.C. 637, 178 S.E. 111.
Thereafter, plaintiff asked to be permitted to amend his complaint (1) by bringing forward again the two causes of action originally nonsuited; and (2) by adding two new causes of action originally regarded as secondary publications. See case as reported on first appeal.
The court denied the first part of the motion on the ground of res judicata ( Revis v. Ramsey, 202 N.C. 815), and allowed the second part in his discretion. Both sides appeal. The ruling on the first part of the motion is affirmed on what was said in Hampton v. Spinning Co., 198 N.C. 235, 151 S.E. 266, and that on the second part of authority of Grant v. Burgwyn, 88 N.C. 95.
Defendant's appeal seems precautionary, as the matter presently debated doubtless would have been rendered academic by subsequent plea and motion. Capps v. R. R., 183 N.C. 181, 111 S.E. 533; Gordon v. Fredle, 206 N.C. 734, 175 S.E. 126.
On plaintiff's appeal, affirmed.
On defendant's appeal, affirmed.