Eastern Cotton Oil Co. v. New Bern Oil & Fertilizer Co.

• Decision Date: 15 March 1933
• Docket Number: 17.
• Parties: EASTERN COTTON OIL CO. v. NEW BERN OIL & FERTILIZER CO. et al.
• Court: North Carolina Supreme Court

168 S.E. 411

204 N.C. 362

EASTERN COTTON OIL CO. v. NEW BERN OIL & FERTILIZER CO. et al.

No. 17.

Supreme Court of North Carolina

March 15, 1933

Appeal from Superior Court, Perquimans County; Parker, Judge.

Action by Eastern Cotton Oil Company against the New Bern Oil & Fertilizer Company and others. From a judgment overruling defendants' plea in abatement and denying motion for removal, defendants appeal.

Affirmed.

This action was heard on defendants' plea in abatement and motion for removal to the superior court of Craven county for trial, on the ground that at the date of its commencement in the superior court of Perquimans county there was pending in the superior court of Craven county an action between the parties to this action, in which the cause of action alleged in the complaint is founded on the same transactions as those on which the cause of action alleged in the complaint in this action is founded. From judgment overruling their plea in abatement and denying their motion for removal, the defendants appealed to the Supreme Court.

L. I Moore, of New Bern, for appellants.

Tazewell Taylor, of Norfolk, Va., and McMullan & McMullan, of Elizabeth City, for appellee.

CONNOR Justice.

The defendants' plea in abatement was properly overruled. The action pending in the superior court of Craven county at the date of the commencement of this action in the superior court of Perquimans county was instituted by the defendants in this action, as plaintiffs in that action, to recover of the plaintiff, as defendant in that action, damages for a breach of the contract alleged in the complaint in that action. The plaintiff, as defendant in that action, in its answer denied the contract as alleged in the complaint; it did not plead the matters and things alleged in the complaint in this action as a counterclaim in that action. A final judgment in the action pending in the superior court of Craven county would not support a plea of res judicata in this action. This is one of the tests applied to determine the identity of the causes of action where the defendant in an action pleads the pendency of another action in abatement of the action subsequently begun. Brown v. Polk, 201 N.C. 375, 160 S.E. 357; Murchison Nat. Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452. Although the parties in the two actions are identical, the causes of action are not the same nor are they founded on the same transactions. This...