Alexander v. Norwood

• Decision Date: 17 March 1896
• Citation: 24 S.E. 119,118 N.C. 381
• Parties: ALEXANDER et al. v. NORWOOD.
• Court: North Carolina Supreme Court

24 S.E. 119

118 N.C. 381

ALEXANDER et al. v. NORWOOD.

Supreme Court of North Carolina

March 17, 1896

Appeal from superior court, Orange county; Starbuck, Judge.

Action by Maggie Alexander and Alexander Pratt against James Norwood, administrator. From a judgment overruling a demurrer to the petition, defendant appeals. Reversed.

If it be made to appear that all material questions and rights can be determined in the pending cause therein, the second action will be dismissed.

Graham & Graham, for appellant.

C. D. Turner, for appellees.

FAIRCLOTH, C.J.

The purpose of the code system is to avoid a multiplicity of actions by requiring litigating parties to try and dispose of all questions between them on the same subject-matter in one action. Where an action is instituted, and it appears to the court, by plea, answer, or demurrer, that there is another action pending between the same parties, and substantially on the same subject-matter, and that all the material questions and rights can be determined therein, such action will be dismissed. The plaintiff has no election to litigate in the one or bring another action. Rogers v. Holt, Phil. Eq. 108. And the court will ex mero motu dismiss the second action, as the parties, even by consent, cannot give the court jurisdiction. Long v. Jarratt, 94 N.C. 443. In the case before us it appears from the complaint that there is another action pending in the same court between the same parties (reversed), in which the right of the administrator to sell lands for assets in the main question, in which the defendants therein deny the right to sell on the ground that there are sufficient funds already in the hands of the administrator to pay all debts and charges. The complaint in this action refers to the former action, which reference in effect incorporates the same into this case. The present action demands that the administrator distribute to plaintiffs their shares of the estate. This involves an account, which can be had in the first action. Where the pendency of the first action appears in the complaint, the question is properly raised by demurrer. If it does not so appear, then the defense must be made by answer. The judgment overruling the demurrer is erroneous. Reversed.