It may appear to be a hardship that P. M. King, administrator of Maggie Barber, cannot enforce the collection by execution and levy the judgment obtained against the North Carolina Railroad Company. We must consider the setting: The United States Government put forth every effort to aid her allies and to help win the World War; to-meet certain situations that arose during this period Congress passed what is known as the Transportation Act of 1920.
Sec. 206(g) is as follows: “No execution of process, other than on a judgment recovered by the (United States against a carrier, shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under Federal control.” The war emergency forced Congress to take the railroads from their owners and they were operated under Federal control. Under the act, the roads were taken over under the proclamation of the President. Sec. 206(g), supra, forbids execution to be levied on any carrier’s property when the cause of action arose under Federal control.
King, the administrator, has, by pleading and otherwise, consistently taken the position that this matter is res adjudicaba; that the doctrine of estoppel is applicable, and that “execution of said judgment do proceed”; order of Stack, I., at March Term, 1923, from which an appeal was taken but not perfected, is a finality. We cannot now so hold. Under the decision in North Carolina Railroad Co. v. Story, 288 U. S., Supreme Court Rep., p. 287, upon writ of certiorari reversing this Court (187 N. C., 184) it is said at p. 293: “Coming now to the merits, it may be conceded that the first judgment against the company in favor of the administrator, however erroneous it was in view of the cases of Missouri P. R. Co. v. Ault, 256 U. S., 554, 65 L. Ed., 1087, 41 Sup. Ct. Rep., 593, and North Carolina R. Co. v. Lee, 260 U. S., 16, 67 L. Ed;, *366104, 43 Sup. Ct. Rep., 2, not having been appealed fi;om, was res judicata. Nor could sec. 206(g) prevent the second'judgment. It was not directed against judgments. It was'intended to protect the property of the company, not by preventing a judgment, but by preventing an execution to satisfy a judgment for injury by government operation of its road, whether that judgment was rendered against the carrier which leased the road, against the carrier which owned the road, or against the government itself. . . . By virtue of a law of Congress plainly within its power, a distinction was thus made between the judgment and the execution. The State Supreme Court decided that the right to a judgment as between the plaintiff and the railroad company in the second case was established by the first judgment, not that a right to execution thereon was established. 184 N. C., 442, 115 S. E., 172. . . . It is well settled that the principle of res judicata is only applicable to the point adjudged and not to points only collaterally under consideration, or incidentally under cognizance, or only to be inferred by arguing from the degree (citing cases). . . . The reasoning and opinion of the court are not res judicata unless the subject-matter in issue be definitely disposed of by the decree,” citing cases.
King, administrator, had a remedy under section 206(a), of the Transportation Act of 1920, which reads as follows: “Actions at law, suits in equity, and proceeding in admiralty, based on causes of action arising out of the possession, use of operation by the President of the railroad system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of 29 August, 1916), of such character as prior to Federal control could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act.”
A careful analysis of the controversy will disclose that the gist of the contentions in the end is simple. The plaintiff contends that the question here could not be an issuable matter in the action for actionable negligence for King’s intestate’s death; that the question of execution and levy under the Federal Act did not arise until there was an actual levy upon the property; this may never happen, therefore, there could be no res judicata or estoppel. The Stack, J., order “that execution of said judgment do proceed" was pro forma under C. S., 659; that plaintiff had no equity on which to base an application for relief to restrain defendants until an actual execution and levy. This question could not be in issue in the actionable negligence case during that controversy — it was not born and had no life, therefore there could be no estoppel res judicata — its birthday was the execution and levy.
*367We have studied with care the decisions cited by defendants, but we think the United States Supreme Court reversing this Court settled every contention against defendants. As said in the brief of plaintiff: “Unquestionably the Supreme Court of the United States took cognizance of the case, exercised its power and jurisdiction, and has adjudged the rights of the parties.” We can find
No error.