Upon the former appeal in this action, 267 N.C. 545, 148 S.E. 2d 548, we had before us the judgment entered by Riddle, S.J., dismissing the action for lack of jurisdiction in the superior court to hear and determine it for the reason that the matter was *751within the exclusive jurisdiction of the Industrial Commission. We reversed the judgment, saying:
“The Workmen’s Compensation Act does not confer upon the Commission jurisdiction to hear and determine an action, brought by an injured employee against a physician or surgeon, to recover damages for injury due to the negligence of the latter in the performance of his professional services to the employee. G.S. 97-26 relates to the right of the employee to recover damages or benefits under the Act from the employer, and so from the insurance carrier of the employer. It does not impose liability upon the physician or surgeon or relieve him thereof. * *
“Since the Workmen’s Compensation Act does not abrogate the employee’s common law right of action against the attending physician or surgeon, and does not confer upon the Industrial Commission jurisdiction to hear and determine such action, the superior court had jurisdiction to do so, and the judgment dismissing this action for want of jurisdiction in the superior court was erroneous.”
The question of the sufficiency of the defendant’s First Further Answer as a defense to the cause of action alleged in the complaint was, therefore, determined by our decision on the former appeal and there was no error in the order now before us adjudging that such First Further Answer is overruled; i.e., stricken.
Since the Superior Court of Moore County had jurisdiction over the former action and the North Carolina Industrial Commission had no jurisdiction to hear and determine it, the judgment of McConnell, J., that it “be retired from the civil issue docket” of the superior court and be “transferred to the North Carolina Industrial Commission for further proceedings according to law” was void. The superior court has no jurisdiction to transfer to another tribunal for trial and determination a matter over which the superior court has jurisdiction and such other tribunal has none. This order by McConnell, J., did not purport to dismiss the former action or to determine its merits, but only to transfer it to the Industrial Commission, which the superior court had no power to do. There was, therefore, no error in the order now before us in determining that the Second Further Answer is not sufficient to constitute the defense to the cause of action alleged in the complaint and adjudging that such Second Further Answer be overruled; i.e., stricken.
The original order of the Industrial Commission awarding compensation to the plaintiff was an award against his employer and *752the employer’s insurance carrier. As we stated in our opinion upon the former appeal, this was a determination of the plaintiff’s rights against his employer and the latter’s insurance carrier, not a determination of his rights against the defendant 'on account of the matters and things alleged in his present complaint. The matters now alleged are not res judicata by reason of that award. Consequently, there was no error in the order now before us in the determination that the Third Further Answer does not constitute a defense to the cause of action alleged in the present complaint and that it be overruled; i.e., stricken.
Since the order of McConnell, J., purporting to “retire” the former action from the civil issue docket of the superior court and to transfer it to the Industrial Commission, for hearing and determination, was void, the Industrial Commission thereby acquired no jurisdiction over such former action. It is immaterial that subsequent to such order by McConnell, J., the plaintiff requested the Industrial Commission to hear the matter since jurisdiction over the subject matter of an action cannot be conferred by consent of the parties. Hart v. Motors, 244 N.C. 84, 92 S.E. 2d 673, and cases therein cited. The cause of action alleged in the present complaint is, therefore, not res judicata by reason of the order of the Industrial Commission entered with reference to the former action. There was no error in the order now before us in the holding that the defendant’s Fourth Further Answer is not a sufficient defense to the cause of action alleged in the present complaint and that it be overruled; i.e., stricken.
Since the order of McConnell, J., purporting to “retire” the former action from the civil issue docket of the Superior Court of Moore County and to transfer it, for hearing and determination, to the Industrial Commission was a nullity, the former action remained in the Superior Court of Moore County until the judgment of voluntary nonsuit was entered therein in January 1965. That judgment was, therefore, a valid judgment of voluntary nonsuit. The plaintiff having instituted the present action within a year after the entry of that judgment, namely, 16 December 1965, it was entered within the time allowed by G.S. 1-25. There was, therefore, no error in the order now before us by reason of the holding that the defendant’s Fifth Further Answer is overruled; i.e., stricken.
Affirmed.