#### S. A. STEVENS v. CORNELIA VANDERBILT CECIL.

(Filed 18 October, 1939.)

1. Process § 5—

Where it appears that the cause of action alleged had theretofore been finally determined against plaintiff in a prior suit, such cause of action will not support service of process by publication and attachment.

3. Same—

An action to cancel a judgment of *reirawit*will not support the service of process by publication and attachment, since it is not one to recover a sum of money only nor damages for one or more of the causes of action enumerated in the statute, C. S., 798.

Appeal by plaintiff from *Pless, J.,*at February Term, 1939, of Buncombe.

Affirmed.

*Don C. Young and Frank Carter for plaintiff, appellant.*

*Adams & Adams for defendant, appellee.*

*351Schenck, J.

This is an appeal from an order vacating an attachment made upon motion of tbe defendant lodged under a special appearance.

Tbe plaintiff bad summons to issue against tbe defendant wbieb was returned “Due search made, defendant not to be found in Buncombe County.” Upon tbe plaintiff’s filing proper undertaking, tbe clerk issued a warrant of attachment, and ordered that service of summons and of tbe attachment be made by publication. Tbe sheriff served tbe summons and attachment upon C. D. Beadle, Secretary-Treasurer and North Carolina process officer of tbe Biltmore Company, and an order to said C. D. Beadle requiring him to appear before tbe clerk and answer upon oath as to tbe ownership of capital stock in tbe Biltmore Company by tbe defendant.

Tbe defendant entered a special appearance and moved to dismiss tbe attachment and order of garnishment for that it appeared from tbe complaint filed that an attachment did not lie.

Tbe complaint, which was used as an affidavit to procure tbe attachment, alleges two causes of action. Tbe first cause of action alleged being that tbe plaintiff, while an employee of tbe defendant, was permanently injured by tbe negligence of tbe agents of tbe defendant and bad instituted action for damages caused by said injury, and that shortly after issue was joined in said action tbe defendant’s agent and manager falsely and fraudulently represented to tbe plaintiff that be bad power to settle and compromise said action, and thereby induced tbe plaintiff to compromise said action for tbe nominal sum of $75.00 and a contract for permanent employment, which contract tbe defendant breached. Tbe cause of action thus alleged has been determined adversely to tbe plaintiff. *Stevens v. Cecil,*209 N. C., 738. Hence it plainly appears from tbe pleadings that tbe so-called “first cause of action” must fail and that it was proper so far as said “first cause of action” was concerned to vacate tbe attachment. *Knight v. Hatfield,*129 N. C., 191.

Tbe prayer for relief in tbe second cause of action alleged in tbe complaint is that tbe *"retraxit*be canceled and tbe aforementioned judgment of nonsuit be stricken out and that said former action be reinstated on tbe Civil Issue Docket of this court for trial according to tbe course and practice of tbe courts.” It is apparent that this action is neither “to recover a sum of money only,” nor “damages for one or more” of tbe causes enumerated in tbe statute, C. S., 798. Hence tbe attachment was properly vacated in so far as tbe second cause of action alleged in tbe complaint is concerned.

Tbe judgment of tbe Superior Court is

Affirmed.