Cook v. Cook

• Court: United States State Supreme Court of North Carolina
• Citation: 159 N.C. 46,74 S.E. 639
• Decision Date: 17 April 1912
• Parties: COOK. v. COOK.

74 S.E. 639
(159 N.C. 46)

COOK.
v.
COOK.

Supreme Court of North Carolina.

April 17, 1912.

1. Abatement and Revival (§ 85*) — How Pleaded.

Under Revisal 1905, § 474, subd. 3, providing that a defendant may demur when it appears on the face of the complaint that there is another action pending, and section 477, providing that an objection may be taken by answer where it does not appear on the face of the complaint, a plea in abatement, on the ground of another suit pending, may be incorporated with an answer to the merits.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 156, 508-510; Dec. Dig. § 85;* Pleading, Cent. Dig. § 186.]

2. Divorce (§ 9*)—Proceeding—Cross Action.

A spouse sued for divorce may, upon cross-action or petition, accompanied by the proper jurisdictional affidavit, ask for and obtain a divorce; such proceeding being in the general nature of a counterclaim.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. § 11; Dec. Dig. § 9.*]

[74 S.E. 640]

3. Judgment (§ 622*) — Bar of Causes of Action—Counterclaim.

A defendant need not set up a counterclaim existing in bis behalf, but may assert it in a different or subsequent action.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1136, 1137; Dec. Dig. § 622.*]

4. Divorce (§ 82*)—Pendency of Another Action.

A husband instituted an action in one county against his wife for absolute divorce, and later, and in another county, she instituted an action for divorce mensa et thoro; the husband setting up the pendency of the former action as matter of abatement. Held, that the plea in abatement was properly denied.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. § 268; Dec. Dig. § 82.*]

Clark, C. J., and Walker, J., dissenting.

Appeal from Superior Court, Wake County; Peebles, Judge.

Action by Irene J. Cook against John M. Cook. From a judgment for plaintiff, defendant appeals. Affirmed.

The present action was instituted August 26, 1911, and summons therein was personally served on defendant September 1, 1911. Plaintiff tiled her complaint to September term, 1911, for divorce from bed and board on account of abandonment "unlawfully and without just cause, " the complaint being accompanied by the formal affidavit required by the statute. Defendant thereupon answered, denying the alleged abandonment, and answered, further, in bar of plaintiff's right to maintain her action that the defendant had theretofore commenced an action for divorce a vinculo for cause specified in subsection 5, Rev. 1908, § 1561; that is, because the parties had lived separate and apart for ten successive years, had resided in the state for that period, and there were no children born of the marriage, etc. It appeared that defendant's action returnable to superior court of Alamance county had been commenced September 24, 1910. Summons personally served on plaintiff October 1, 1910, complaint filed November term, 1910, and defendant therein—that is, the present plaintiff—had appeared in that suit, and made formal denial of complaint, and as a part of such denial had averred a wrongful abandonment by her husband in August, 1900, and prayed judgment that plaintiff's suit be denied him. This answer was verified in ordinary form of answers in civil actions, but not in the form required in actions for divorce. When the present case was called for trial in Wake superior court, it was admitted by plaintiff that the action by defendant in Alamance was still pending, and, before the jury was impaneled, defendant moved to "abate the action and dismiss the same" by reason of the pending of the Alamance case, and the court held that on the facts the pendency of the action in Alamance county was not necessarily a bar to this, and that the answer to the merits de stroyed the plea in abatement, and offered defendant opportunity to withdraw his plea in bar and file a plea in abatement which was declined and defendant excepted. The jury was then impaneled, and the following verdict was rendered:

"(1) Were the plaintiff and the defendant married on March 22, 1900?" Answer: "Yes."

"(2) Did the defendant abandon the plaintiff, as alleged in the complaint?" Answer: "Yes."

"(3) Has the plaintiff been a resident of the state of North Carolina for two years next preceding the filing of the complaint?" Answer: "Yes."

"(4) Is the defendant a resident of the state of North Carolina?" Answer: "Yes."

"(5) Was the plaintiff a resident of Wake county, N. C, at the time this action was commenced?" Answer: "Yes."

Judgment on the verdict and defendant excepted and appealed.

Parker & Parker, Long & Long, Dameron & Long, and Holding & Snow, for appellant.

R. N. Simms and H. E. Norris, for appellee.

HOKE, J. (after stating the facts as above). [1] Under our present procedure, a defendant is allowed to demur when it appears on the face of the complaint that there is another action pending between the same parties for the same cause (Rev. 1905, § 474, subsec. 3), and, where this does not appear from the complaint, the objection may be taken by answer (Rev. § 477), and it has been held with us that an objection of this character may be joined with plea in bar or an answer on the merits. Blackwell v. Dibrell, 103 N. C. 270, 9 S. E. 192, citing on this position Pomeroy's Remedies, § 721. The judge below, therefore, had no right to require defendant to withdraw his answer on the merits as a condition for having his plea in abatement considered and passed upon.

We hold, however, that the verdict and judgment should not be disturbed on this account, being of opinion that the pendency of defendant's suit in Alamance...