
    Patton vs. Childs et al.
    
    On a petition for partition of real estate in this State, the statute provides that “if any of the parties reside without the limits of this State, the court may order service by publication as in its judgment is right in each case.” In the case at bar, the service upon plaintiff in error, a citizen of North Carolina, was ample, by publication and in accordance with the statute, in a former partition of the lands to which he was a party:
    
      Held, that the service binds the plaintiff in error and that the plea of res adjudicata is a bar to a suit by him petitioning for a new partition. Act 1767, Cobb’s Dig. p. 582; Code, §3998.
    (Head-note by the court.)
    Judgment affirmed.
    December 7, 1886.
   Jackson, Chief Justice.

[Preston F. Patton filed his petition for a partition of land, alleging that Childs and Nickerson were tenants in common with him. They pleaded in bar of the proceeding a former one instituted by them for the same purpose, to which Patton was a party, being served by publication. The case was submitted to the presiding judge without a jury. He held that the present application was barred by the former judgment, and the petitioner excepted.]  