Is the original action, non constat the judgment of nonsuit, still pending in the Superior Court of Buncombe County ? The court below answered no. We concur.
“Nonsuit” is a process of legal mechanics. The case is chopped off. Corcoran v. Transportation Co., 57 S. E., 962. It is a judgment of dismissal. Anderson v. Distributing Co., 55 S. W. (2d), 688. It dismisses the action. Cyclopedic Law Dic., 2nd Ed. (Callaghan). Although it does not necessarily decide the merits of the cause of action, it is a final judgment in that it terminates the action itself.
“Nonsuit is the name of a judgment given against the plaintiff when he is unable to prove a case . . .” Cooper v. Crisco, 201 N. C., 739, 161 S. E., 310. “A nonsuit is but like the blowing out of a candle, which a man at his own pleasure may light again.” Hickory v. R. R., 138 N. C., 311, 50 S. E., 683. If there is no appeal or if the nonsuit is *446sustained on appeal, plaintiff, if be would prosecute bis claim further, must institute a new action. G. S., 1-25, C. S., 415.
Tbe words “new action,” “new suit,” and “original suit” as used in tbis statute, Gr. S., 1-25, clearly import tbat a judgment of nonsuit terminates tbe original action. They indicate a difference in tbe two actions tbougb tbe causes may be identical. Cooper v. Crisco, supra. Tbe distinction is observed in decisions referring to tbe causes of action in tbe respective suits, to a restatement of tbe same cause in tbe latter action, and to “another action,” “second action,” tbe “former action,” and a “subsequent action.” See Cooper v. Crisco, supra, and cases cited.
Tbe fact tbat defendant bad pleaded a counterclaim does not affect tbe finality of tbe judgment. When tbe defendant, at tbe close of tbe evidence for plaintiff, moved for judgment dismissing tbe action as of nonsuit, it in effect submitted to a voluntary nonsuit on its counterclaim. Gruber v. Ewbanks, 199 N. C., 335, 154 S. E., 318.
It cannot put its adversary out of court and at tbe same time retain tbe cause in court. Morse v. Turner, 92 S. E., 767. It elected to move for a dismissal of tbe action by judgment of nonsuit and it announced at tbe time tbat upon tbe granting of tbe motion it would submit to voluntary nonsuit on its counterclaim. Tbe motion was granted and judgment of dismissal was entered. Thus plaintiff’s action and defendant’s counterclaim fall together.
Tbe court may have committed error in dismissing tbe action while tbe counterclaim was pending. If so, it was error and no more. Tbe judgment was entered at tbe instance and upon tbe motion of defendant. It is not now in a position' to insist tbat tbe action is still pending.
While there is some division of opinion on tbis question, tbe weight of authority is in accord with this conclusion. Morse v. Turner, supra; Lumber Co. v. Dalrymple, 21 Atl., 949; McClellan’s Adm’r v. Troendle, 99 S. W., 329; Rice-Stix Dry Goods Co. v. Friedlander Bros., 122 S. E., 890; Hodges v. GMAC, 141 So., 783; Bell v. Leiendecker, 170 So., 386; Finch v. Ekstrom, 1 Pac. (2d), 516; Whitaker v. Wright, 129 So., 889; Crocker v. Chillingworth, 143 So., 346; McMillan v. Lorimer, 107 So., 239; Picard Const. Co. v. Board of Com’rs., 109 So., 816; Erskine v. Gardiner, 110 So., 97; Miller v. Davis, 217 N. W., 904; Chavez v. Ade, 34 Pac. (2d), 670; Gafford v. Twitty, 115 S. E., 105; State v. C. S. Jackson & Co., 82 So., 213; Herring-Hall-Marvin Safe Co. v. Purcell Safe Co., 158 Pac., 477.
Tbe judgment below is
Affirmed.