
    ELBERTA REVIS v. HANNAH RAMSEY, Administratrix, et al.
    (Filed 15 June, 1932.)
    1. Appeal and Error A d — Appeal from granting of motion to amend is premature.
    An appeal from the granting of a motion to amend is premature, the appellant having suffered no harm from the allowance of the motion.
    2. Judgments L b — Doctrine of res judicata does not apply to incidental motions not affecting substantial rights.
    The doctrine of res judicata, does not apply to ordinary motions incidental to the progress of the trial but only to those involving substantial rights.
    
      Appeal by plaintiff from Sink, J., at February Term, 1932, of MADISON.
    Civil action to recover on a promissory note for $100, dated 22 February, 1916, due 1 December, 1916, under seal, and ostensibly signed by Caney Ramsey and Z. Ponder as makers.
    Tbe defendant, Z. Ponder, in bis original answer, denied' executing tbe note and pleaded tbe three, seven and ten-year statutes of limitations.
    When tbe case was called for trial at tbe October Term, 1931, Stack, J., presiding, “tbe defendant, in open court, asked for permission to amend bis answer so as to set up tbe statute of limitations and tbe court, in its discretion, denies tbe motion, and tbe defendant excepts.”
    There was a verdict, at said term, finding that plaintiff’s claim was barred by tbe statute of limitations as to tbe defendant, Z. Ponder. This was set aside, in tbe discretion of tbe court, as contrary to tbe weight of tbe evidence. Welch v. Hardware House, ante, 641; Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686; Goodman v. Goodman, 201 N. C., -794, 161 S. E., -688.
    Thereafter, at tbe February Term, 1932, Sink, J., presiding, tbe defendant, Z. Ponder, asked to be permitted to amend bis answer and set up that be signed said note as surety only, and to plead tbe three-year statute of limitations, no payments having been made thereon within three years next preceding tbe filing of plaintiff’s complaint. Motion allowed, and plaintiff appeals.
    
      John A. Hendmclcs for plaintiff.
    
    
      John H. McElroy and Garter &. Garter for defendant Ponder.
    
   Stacy, O. J.

Tbe plaintiff contends that as tbe application of tbe defendant, Z. Ponder, to amend bis answer so as to plead tbe statute of limitations was denied by Stack, J., at tbe October Term, 1931, Sink, J., was without authority at tbe February Term, 1932, to'bear a renewal of tbe same motion and to allow it, upon tbe theory that tbe matter was then res judicata and no appeal lies from one Superior Court judge to another. Wellons v. Lassiter, 200 N. C., 474, 157 S. E., 434; Phillips v. Ray, 190 N. C., 152, 129 S. E., 177; Dockery v. Fairbanks, 172 N. C., 529, 90 S. E., 501; May v. Lumber Co., 119 N. C., 96, 25 S. E., 721; Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130; Roulhac v. Brown, 87 N. C., 1; S. v. Evans, 74 N. C., 324.

Tbe motion made at tbe February Term is different from tbe one lodged at tbe October Term. Compare Jones v. Thorne, 80 N. C., 72. Tbe first was perhaps denied because it was thought tbe statute of limitations bad already been pleaded. But however this may be, no barm bas come to tbe plaintiff from tbe ruling on tbe second motion, and bis appeal is premature.. Trust Co. v. Whitehurst, 201 N. C., 504.

Tbe principle of res judicata does not extend to ordinary motions incidental to tbe progress of a cause, but only to those involving substantial rig-hts. Allison v. Whittier, 101 N. C., 490, 8 S. E., 338; Mabry v. Hernry, 83 N. C., 298.

Appeal dismissed.  