Carpenter v. Hanes

• Decision Date: 23 April 1913
• Citation: 77 S.E. 1101,162 N.C. 46
• Court: North Carolina Supreme Court
• Parties: CARPENTER, BAGGOTT & CO. v. HANES.

77 S.E. 1101

162 N.C. 46

CARPENTER, BAGGOTT & CO.

v.HANES.

Supreme Court of North Carolina.

April 23, 1913.

1. Injunction (§ 33^*) — Remedy—Restrain-ing Action in Other State.

While the courts of a state where both parties to a suit are domiciled may restrain the prosecution of suits between such parties in a foreign jurisdiction, especially where a resident creditor is seeking to evade the laws of his domicile, yet such power cannot be exercised to enjoin parties who are not domiciled in the jurisdiction of the court merely on the ground that the plaintiff has come into court by bringing an action therein.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.*]

2. Injunction (§ 26*)—Defenses—Adequacy of Legal Remedy.

Even though both parties were domiciled in this state, an injunction would not lie at the suit of one of them to restrain the other party from bringing an action in this state on the same cause of action as another action pending between the same parties in another state; Revisal 1905, § 474, subd. 3, making it a ground of demurrer that there is another action pending between the same parties for the same cause.

[Ed. Note.—For other cases, see Injunction. Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.*]

3. Abatement and Revival (§ 13*) — Grounds of Demurrer—Pending Actions —Pendency in State.

The pending cause of action contemplated by Revisal 1905, § 474, subd. 3, making it a ground of demurrer that there is another action pending between the same parties for the same cause, must be an action pending in this state and not in another state.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 92-98, 100; Dec. Dig. § 13.*]

Appeal from Superior Court, Forsyth County; O. H. Allen, Judge.

Suit by Carpenter, Baggott & Co. against William M. Hanes. From a decree for defendant, plaintiffs appeal. Reversed.

Joseph E. Johnson, of Warsaw, for appellants.

L. M. Swink, of Winston, for appellee.

CLARK, C. J. This is an appeal from a mandatory injunction. The plaintiffs instituted an action in New York against the defendant November 12, 1912, and obtained jurisdiction by attachment and garnishment. On November 18, 1912, the plaintiffs instituted this action against the defendants in this state for the same cause of action, being for the sum of $11,300 alleged to have been paid out in the purchase and sale of 5, 000 bales of cotton at the request of the defendant and $750 for commissions thereon, less $9,305 that has been paid, leaving balance due the plaintiffs $2,745. The defendant alleged that the transaction was a gambling transaction, being a dealing in "futures" and void under Rev. 1689, 1690, and 1691, and asked for a recovery on a counterclaim of $3,000, which the defendant had put up as "margin, " and which the plaintiffs had appropriated for their own use. And also further counter claim for wrongfully selling the cotton purchased by the plaintiffs for the defendant. The defendant further alleges that the attachment in the New York proceedings was wrongfully sued out in that the defendant had no property or effects in that state, and that the purpose and intention was to injure and harass the defendant, asking damages herein for such wrongful act. The defendant further alleges that there was no personal service of process in New York in the suit instituted there, and that that action was for the same cause of action upon which this suit is instituted; and, both parties being duly in court in this action (plaintiffs by bringing the action and the defendant by personal service), the defendant asks the court, in order to prevent multiplicity of suits and the expense attendant thereon, that a restraining order issue to enjoin and restrain the plaintiffs, their attorneys and agents, from the further prosecution of the said cause in the courts of New York, and from any interference thereby with the orders and process in this court, in so far as it embraces the cause of action set out in the complaint herein. The court issued a mandatory injunction in accordance with this prayer and directed further that the plaintiffs and their agents and attorneys dismiss the said action in New York.

There are many cases that hold that the courts of a state where both parties are domiciled may restrain the prosecution of suits between such parties in a foreign jurisdiction. Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981; Cunningham v. Butler, 142 Mass. 47, 6N.E 782, 56 Am. Rep. 657. This power has been most frequently exercised in those cases where a resident creditor is seeking to evade the laws of his domicile, and the ability to exercise it rests upon having the person of the party enjoined within reach of the process of court. But, even in such cases, the power should be exercised sparingly and only to suppress manifest injustice and oppression, and not from any arrogant sense of greater ability to do justice to either party or because of more favorable laws, or of convenience of the parties. Bigelow v. Old Dominion Copper Co., 74 N. J. Eq. 457, 71 Atl. 153, and many other cases. But such power cannot be exerted to enjoin parties who are not domiciled in the jurisdiction of the court merely on the ground that the party has come into court by bringing an action herein. Probably the only case that has asserted the power of the court to restrain a nonresident plaintiff from bringing an action in another jurisdiction is Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545, which was afterwards overruled by two cases in that state. Griffith v. Langsdale, 53 Ark. 71, 13 S. W. 733, 22 Am. St. Rep. 182, and Greer v. Cook, 88 Ark. 93, 113...