Cook v. Cook

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

74 S.E. 639

159 N.C. 46

COOK v. COOK.

Supreme Court of North Carolina

April 17, 1912

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.

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

The present action was instituted August 26, 1911, and summons therein was personally served on defendant September 1, 1911. Plaintiff filed 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 destroyed 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).

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 county in which the husband is seeking to obtain a divorce a vinculo is not necessarily a good plea against the present prosecution of plaintiff's suit for divorce from bed and board. As a general rule, this right to plead the pendency of another action between the same parties before judgment had is regarded to a large extent as a rule of convenience, resting on the principle embodied in the maxim, "Nemo debet bis vexare," etc. The defect is one that can be waived, and it may also be cured by dismissing the prior action at any time before the hearing (1 Cyc. p. 25; Grubbs v. Ferguson, 136 N.C. 60, 48 S.E. 551), and the plea presenting it is usually confined to suits in which the same litigant is plaintiff or is at least an actor seeking the same relief ( Long v. Coal & Iron Co., 233 Mo. 714, 136 S.W. 673; Rodney v. Gibbs, 184 Mo. 1-10, 82 S.W. 187; State ex rel. Craig v. Dougherty, 45 Mo. 294; Mattel v. Conant, 156 Mass. 418, 31 N.E. 487; Washburn & Co. v. Scutt Co. [C. C.] 22 F. 711; Walsworth v. Johnston, 41 Cal. 61; New England Screw Co. v. Blevin, 3 Blatchf. 240, Fed. Cas. No. 10,156). In the case before us, the present plaintiff is not the plaintiff in the action pending in Alamance county, nor is she an actor in that suit seeking affirmative relief. She asks for no judgment there, and has not filed the affidavit required by our law in divorce proceedings, and which we have often held is jurisdictional in its nature. Johnson v. Johnson, 142 N.C. 462, 55 S.E. 341; Hopkins v. Hopkins, 132 N.C. 22, 43 S.E. 508. In divorce proceedings a defendant sued is allowed with us to ask for and obtain a divorce on his own account, but he can only do so by cross-action or petition, accompanied by this jurisdictional affidavit, and coming within the definition of the general term counterclaim, as it is understood and used in the Code. Smith v. French, 141 N.C. 17, 53 S.E. 435, citing Green on Code Pleadings and Practice, § 815. It is well recognized here that a party sued is not required as a rule to set up a counterclaim existent in his favor, but is allowed to assert the same in a different or a subsequent action. Shakespeare v. Land Co., 144 N.C. 521, 57 S.E. 213; Mauney v. Hamilton, 132 N.C. 303, 43 S.E. 903; Tobacco Co. v. McElwee, 94 N.C. 425.

It is urged that, while this rule may hold in ordinary actions, it should not obtain in divorce proceedings because the status of the parties is then necessarily involved. It would seem however, to be especially insistent in such proceedings where a party may not desire to presently seek affirmative relief in the hope that a different course would more likely lead to a reconciliation, and assuredly we think the reluctance or failure to take such course from such a motive should not be held to defeat or prejudice the right of a defendant to bring his cause before the court at another time. This plea, upon which defendant now relies to defeat plaintiff's recovery, is referred to in 1 Pl. & Pr. p. 750, as available when there is a former suit pending in the same jurisdiction between the same parties for the same cause of action and for the same relief. Not only is present plaintiff not an actor in the suit in Alamance county, but the relief sought by her is not the same as that involved in the other issue, nor is it dependent altogether on the same state of facts. And authority seems to favor the position that the pendency of an action seeking one kind of divorce does not necessarily forbid the maintenance of a suit to secure a divorce of a different kind. Simpson v. Simpson (Cal. Sept. 1895) 41 P. 804 ^[1]; Stevens...