Emry v. Chappell

• Decision Date: 16 September 1908
• Citation: 148 N.C. 327,62 S.E. 411
• Court: North Carolina Supreme Court
• Parties: EMRY. v. CHAPPELL.

62 S.E. 411

148 N.C. 327

EMRY.

v.CHAPPELL.

Supreme Court of North Carolina.

Sept. 16, 1908.

1. Action—Proceedings Constituting Commencement.

An action is commenced when the summons served is delivered to the sheriff for service.

[Ed. Note.—For cases in point, see Cent. Dig. vol.], Action, § 727.]

2. Abatement and Revival — Ground of Abatement—Another Action Pending.

It is ground for abatement of an action that a prior suit is pending in a court of com petent jurisdiction in which the plaintiff can obtain all of the relief which he could in the second, and it is immaterial that there are other parties to the first suit, or that the parties occupy different positions on the record.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 73.]

3. Same—Action to Dissolve Partnership.

In an action by a creditor against a partnership, one of the defendants filed an answer against his copartner, alleging his mismanagement of the business, and that he was indebted to the firm and praying for an accounting and a dissolution, and by consent of the parties a reference was ordered for the purpose of stating an account between plaintiff and the partnership and also between the partners. Held, that the pendency of such action in that condition was ground for abatement of a second action between the partners alone for a dissolution and accounting, and for ancillary relief by the appointment of a receiver.

4. Same—Pleading—Matter in Abatement.

The pendency of another suit as a ground of abatement may be pleaded by way of answer, where it does not appear from the face of the complaint.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 123.]

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

Action by T. L. Emry against Edward Chappell. From an order refusing to sustain a plea in abatement taken by answer, defendant appeals. Reversed.

This is an action for the dissolution of the partnership of Emry & Chappell, and a settlement of its affairs. The plaintiff also asks for an injunction and a receiver to protect the partnership assets pending the action. He bases his claim for relief upon the allegations that the defendant and himself have disagreed as partners; that he has been denied any participation in the management of the business; and that the defendant is mismanaging the affairs of the firm and converting its assets to his own exclusive use. The defendant filed an answer, in which he alleges that there is a former suit pending between the Lyon & Montague Company, which is a creditor of the firm, and Emry & Chappell, to recover a debt alleged to be due the plaintiff, and that the plaintiff Emry can have the same relief in that action as he now demands in this one. In the case of Lyon & Montague Co. v. Emry & Chappell, the defendants were served with process. The defendant Emry did not answer, the defendant Chappell answered only for himself, and averred, in his original and amended answers, that the plaintiff paid to Emry a large amount due the defendants after notice from the defendant Chappell not to do so, as Emry had already received a large sum in excess of his share of the partnership assets, and was misappropriating the same, the amount so paid being more than sufficient to pay the claim of Lyon & Montague against the defendants, and, further, that the said company was also notified by him to reserve an amount sufficient to pay their claim, which they failed to do. He further substantially alleges against hiscodefendant Emry that the partners had disagreed; that Emry had mismanaged the business and misapplied the assets, converting them to his own use, so that on October 1, 1806, he was indebted to the firm in the sum of $48,895.69, one-half of which was due to him; that he had demanded a settlement, which Emry refused and then withdrew from active management of the business, leaving him in sole charge; and that upon a settlement Emry will owe him at least $20,000. He demands judgment for a dissolution of the partnership and an accounting of all the dealings and transactions of the firm; that its property be sold, the debts paid, and the surplus divided between the partners, according to their several and respective rights. He further prays that a judgment be rendered against Emry for $20,000, the amount due by him to Chappell, the answering defendant. There is a prayer for further relief and costs. The record shows that all the parties agreed to refer the case for the purpose of taking and stating an account between the plaintiff Lyon & Montague and the defendants Emry & Chappell, and also between the defendants themselves, as partners, with leave to Chappell to amend his answer and to Emry to file an answer. The reference was so ordered, with the consent of all the parties. The judge passed upon the answer and the evidence of the record in the former suit, which he found, as a fact, to exist, and, after consideration of the same, refused to sustain the plea in abatement, or answer in the nature of a plea, or to dismiss the action, because the plaintiff could not obtain the same relief in the other action pending in the superior court of Nash county as he sought to obtain in this case. The defendant Chappell excepted and appealed.

Battle & Cooley and Bunn & Spruill, for appellant.

E. L. Travis and Walter E. Daniel, for appellee.

WALKER, J. (after stating the facts as above). The record shows that the suit of Emry v. Chappell was commenced on May 6, 1908; that being the day on which the summons was delivered by the clerk to the sheriff, as appears by the latter's indorsement on the process. Smith v. Lumber Co., 142 N. C. 26, 54 S. E. 788, 5...