#### STATE OF NORTH CAROLINA on Relation of N. A. COOPER v. T. F. CRISCO.

(Filed 2 December, 1931.)

1. Trial D a — Voluntary nonsuit is voluntary abandonment of action by plaintiff, after which he may bring another action within a year.

Ordinarily when the plaintiff submits to a voluntary nonsuit in a civil action he is unable to iirove his case, or refuses or neglects to proceed to the trial of the cause at issue, or leaves the matter undetermined, and in that circumstance he is allowed by statute to bring another action upon the same subject-matter within a year if no statute of limitations has run against the former action before it was commenced, and the cost thereof has been paid, unless the action was brought *m forma pauperis.*C. S„ 415.

2. Quo Warranto B a — Where relator* takes voluntary nonsuit he must again obtain irennission to sue in order to bring subsequent action.

Common-law procedure by. *quo warranto*and proceedings by information in the nature thereof have been abolished, and the remedy in such matters is under the provisions of our statute, C. S., 869, 871, requiring that permission of the Attorney-General be first obtained and bond filed to save the State harmless from costs, and where the relator has complied with these conditions and takes a voluntary nonsuit and within a year brings another action upon the same subject-matter against the same respondent, but fails to obtain permission to bring the second action or to file bond therefor until the day before judgment is signed, his delay is fatal and the action is properly dismissed, it being necessary that the provisions of the statute be again complied with before the bringing of the second action.

*7403. Same — Bond and permission to sue are prerequisite to right to maintain action in the nature of quo warranto.

In proceedings under the statute to try title to a public office the interest of the public is involved and is paramount to the rights of the relator, and the consent of the Attorney-General, the filing of the bond, etc., as required by the statute, is a prerequisite to the right of the relator to maintain the action.

Appeal by plaintiff from a judgment of Schenclc, *J.,*rendered 18 Juno, 1931. From StaNly.

Affirmed.

In tbe election beld in November, 1930, tbe plaintiff and tbe defendant were candidates for tbe office of sheriff of Stanly County. Tbe board of county canvassers declared tbe defendant elected and the plaintiff instituted proceedings to contest tbe regularity and validity of bis election. On 15 December, 1930, tbe Attorney-General of North Carolina granted tbe plaintiff leave to institute an action in tbe Superior Court of Stanly County to determine tbe rights of tbe parties with respect to tbe office, tbe plaintiff having tendered security in tbe sum of $500 to indemnify tbe State against all tbe costs and expenses that would accrue in consequence of tbe action. Tbe clerk issued a summons in tbe cause on 30 December, and on 29 January, 1931, tbe defendant entered a special appearance before tbe clerk and moved to dismiss tbe action for want of proper service. Tbe clerk granted tbe motion and tbe plaintiff appealed, but at tbe February Term of tbe Superior Court be took a voluntary nonsuit and was taxed with tbe cost.

Thereafter, on 11 February, tbe plaintiff caused another summons to be served on tbe defendant and duly filed bis complaint. The defendant filed an answer and at tbe May Term tbe court referred tbe cause to a referee subject to tbe defendant’s exception. Tbe referee notified tbe parties that be would proceed with tbe bearing on 26 May. On 25 May tbe defendant applied to tbe judge bolding tbe courts of tbe district for an order to stay proceedings before tbe referee for tbe assigned reason that tbe defendant neglected to apply to tbe Attorney-General within ninety days after tbe defendant’s induction into office for leave to sue in this action in tbe name of tbe State; that be brought bis action without leave of tbe Attorney-General, without filing a bond of indemnity, and without paying tbe cost in tbe former suit.

On 9 June, 1931, tbe plaintiff filed with tbe Attorney-General a petition to be allowed to proceed with this action, and on tbe same date tendered a bond in tbe sum of $1,000 to indemnify tbe State of North Carolina against any liability on account of costs in this action, and on 17 June, 1931, tbe leave of tbe Attorney-General to tbe said plaintiff, as set out in tbe record, was granted. Hearing was bad upon tbe re*741straining order theretofore granted on 11 June, 1931, at Wadesboro before the judge, and the ruling and further hearing were continued until 18 June, 1931, before him at Rockingham, in Richmond County.

On the day last named the court vacated the order of reference and dismissed the action. The plaintiff excepted and appealed.

ff. *Hobart Morton, G. D. B. Reynolds and Walser & Gasey for plaintiff.*

*R. L. Smith & Sons, R. L. Brown, R. L. Brown, Jr., and R. R. Ingram for defendant.*

AdaMs, J.

The writ of *quo warranto*and proceedings by information in the nature of *quo warranto*have been abolished and the remedies available at common law under these forms may now be obtained by a .civil action; but when a private citizen desires to bring such action in the name of the State he must apply to the Attorney-General for leave and tender satisfactory security to indemnify the State against all costs and expenses which may accrue in consequence of the action. C. S., 869, 871.

After obtaining leave from the Attorney-General the plaintiff instituted his first action against the defendant on 30 December, 1930, and at the term of the Superior Court which convened in February he submitted to a judgment of voluntary nonsuit. He afterwards issued another summons and commenced a second action against the defendant without applying for or obtaining the Attorney-General’s permission to sue in the name of the State. In response to the defendant’s proposition that the second action could not legally be prosecuted under these circumstances the plaintiff contends that the leave granted him on IS December, 1930, applied to the second as well as to the first action.

The decision cited in support of this position is *Quelch v. Futch,*174 N. C., 395. In that case the action was first instituted by Thomas H. Williams, who suffered a nonsuit, and within twelve months J. P. Quelch began another action for the recovery of the land which was in controversy in the former suit. The court held that Quelch could not avail himself of C. S., 415 because he was not the plaintiff in the other action and because it did not appear that Williams was dead and that Quelch was his heir or representative; and further that Quelch was not within the equity and spirit of the statute which is based upon substantial identity of parties, title, and causes of action. The statement that the two actions should be treated as one and that the second was a continuance of the writ in the first has reference, we apprehend, to the identity of the causes of action, because the only question before the court was whether the plaintiff had brought himself within the pro*742visions of O. S., 415 (Revisal, 370), tbe Court saying that tbe two suits must be for substantially tbe same causes.

Nonsuit is tbe name of a judgment given against tbe plaintiff wben be is unable to prove a ease, or wben be refuses or neglects to proceed to tbe trial of a cause at issue and leaves tbis issue undetermined. It is provided by statute that if an action is commenced witbin tbe time prescribed tlierefor and tbe plaintiff is nonsuited be may commence a new action witbin one year after sucb nonsuit if tbe costs in tbe original action liave been paid by tbe plaintiff before tbe commencement of *the new*suit, unless *the*original suit was *brought*in *forma pauperis.*C. S., 415. Tbe words “new action,” “new suit,” and “original suit” indicate a difference in tbe two actions tbougb tbe causes may be identical. Tbe distinction is observed in decisions referring to tbe causes of action in tbe respective suits, to a restatement of tbe same cause in tlie latter action, and to “another action,” a “second action,” tbe “former action” and a “subsequent action.” *Webb v. Hicks,*125 N. C., 201; *Woodcock v. Bostic,*128 N. C., 243; *Meekins v. R. R., 131*N. C., 1; *Prevatt v. Harrelson,*132 N. C., 250; *Evans v. Alridge,*133 N. C., 378; *Hood v. Telegraph Co.,*135 N. C., 622; *Tussey v. Owen,*147 N. C., 335; *Lumber Co. v. Harrison,*148 N. C., 333; *Starling v. Cotton Mills,*168 N. C., 229; *Hampton v. Spinning Co.,*198 N. C., 235.

Tbe prosecution bond in tbe first action was given on condition that it should be void if tbe plaintiff paid tbe defendant all costs which tbe latter recovered from him in that action; and according to tbe record the bond filed with the Attorney-General was to indemnify tbe State “in said action.”

*The*cause of action in *the*first suit *may he*identical with *the*cause in tbe second, but it does not follow that tbe prosecution bond, tbe bond of indemnity, or tbe leave given by tbe Attorney-General on 15 December, 1930, can avail tbe defendant in tbe action last instituted. Our opinion is that they cannot.

Tbe next question is whether tbe plaintiff can maintain tbe “new action.” When be began it be bad not obtained tbe leave of tbe Attorney-General to proceed in tbe name of tbe State. Tbe summons was issued 11 February; tbe final judgment was rendered on 18 June; leave to sue was granted on 17 June. Did tbe plaintiff neglect to comply with *the*law?

Insisting that be can maintain the action notwithstanding bis delay in applying to tbe Attorney-General, tbe plaintiff relies in part on *Russell v. Saunders,*48 N. C., 432, and similar cases, in which it is said that tbe giving of a prosecution bond is not a condition precedent to tbe bringing of a suit and hence tbe bond may be filed after tbe writ is re*743turned. Suck bond is given for tbe benefit of the adverse party wbo may waive its execution, *McMillan v. Baker,*92 N. C., 111; but as pointed out in *Saunders v. Gatling,*81 N. C., 298, an action in tbe nature of *quo luarranto*is not merely an action to redress tbe grievance of a private person wbo claims a right to an office; it is one in wbicb tbe public bas an interest wbicb is paramount to tbat of private rights.

Tbat tbe leave of tbe Attorney-General is necessary is not questioned. C. S., 871; *Mining Co. v. Lumber Co.,*173 N. C., 593. Tbe case of *Shennonhouse v. Withers,*121 N. C., 376, suggests an analogy between a suit brought without obtaining tbe required leave and one brought without giving a prosecution bond. Referring to tbat case in *Midgett v. Gray,*158 N. C., 133, *Hoke, J.,*remarked tbat it must always be made to appear, pending tbe proceedings, tbat tbe leave of tbe Attorney-General bas been given to prosecute tbe action. In a subsequent report of tbe same case it was said tbat in tbe absence of proof of permission given anterior to issuing tbe summons tbe action should be dismissed. 159 N. C., 443.

Tbe case last cited is tbe only one wbicb designates tbe specific time when leave should be *obtained*— i. *e.,*before tbe institution of tbe action; but we are advised of no decision in wbicb this Court bas approved tbe practice on wbicb tbe plaintiff now insists. In *Shennonhouse v. Withers, supra,*consent was obtained before tbe trial of tbe action, and in *Midgett v. Gray, supra,*permission to institute tbe action wbicb is referred to as a condition precedent, “was given in writing as required by law,” presumably before tbe commencement of tbe action. In North Carolina Practice and Procedure, see. 970, it is said: “Tbe fact tbat leave bad been obtained should be stated in tbe complaint.” We deem it best to adhere to tbe decision in *Midgett's case*as reported in 159 N. C., 443, and to bold tbat tbe consent of tbe Attorney-General is a condition precedent to tbe institution of tbe action. Tbe plaintiff obtained leave more than four months after tbe institution of tbe action and on tbe day preceding tbe rendition of tbe final judgment. His delay was fatal.

Tbe appellant’s counsel referred to tbe irregularity of tbe final judgment at Chambers dismissing tbe action but stated on tbe argument tbat if tbe merits of tbe case were held to be against tbe plaintiff they would not urge tbe irregularity. For this reason tbe question is not considered. Tbe judgment is

Affirmed.