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SMITH v. WILLIAMS

No. 8625DC372.

347 S.E.2d 842 (1986)

Earl SMITH v. David WILLIAMS, Tony Williams, and Elmore Johnson.

Court of Appeals of North Carolina.

September 2, 1986.

Attorney(s) appearing for the Case

Wheeler Dale, Morganton, for plaintiff-appellant.

McMurray & McMurray by John H. McMurray, Morganton, for defendants-appellees.

WHICHARD, Judge.

Both parties' arguments proceed on the assumption that the 3 January 1985 voluntary dismissal without prejudice to plaintiff was entered pursuant to G.S. 1A-1, Rule 41(a)(1). The same assumption was apparently made in defendant's motion to dismiss and is also apparently the basis for Judge Vernon's order allowing the motion.

The language of Judge Green's 3 January 1985 order allowing the voluntary dismissal without prejudice clearly indicates...

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