Harris v. Johnson

• Decision Date: 30 June 1871
• Parties: W. H. HARRIS and wife SUSAN v. JAMES JOHNSON, et al.
• Court: North Carolina Supreme Court

65 N.C. 478

W. H. HARRIS and wife SUSAN

v.JAMES JOHNSON, et al.

Supreme Court of North Carolina.

June Term, 1871.

The pendency of a former action between the same parties, for the sam?? cause, is a good defence in a second action.

In such a case at Common Law, advantage must be taken thereof by ?? plea in abatement. Under the C. C. P., advantage must be taken b?? answer, if the complaint does not show the pendency of such form?? action.

Appeal from the judgment of a Justice of the Peace, trie?? before Watts, J., at Spring Term, 1871, of NORTHAMPTON S??perior Court.

The plaintiffs held two single bills on the defendants, th?? principal of which amounted to less than two hundred dollar?? and issued separate warrants on each, on the 22d of Septembe?? 1869.

The defendants in their answer, as a bar to the actio?? alleged that prior to issuing the warrants by the Justice ?? the Peace, the plaintiffs had consolidated both single bill?? and brought suit thereon to Spring Term, 1867, of the Superi?? Court of law of Northampton County, which said action is sti?? pending.

The plaintiffs demurred to the answer.

The defendants moved the Court to dismiss the appea?? which his Honor declined, and gave judgment respondeat ou??ter.

Rule, &c. Appeal.

Barnes, for plaintiff .

W. W. & R. B. Peebles, for defendants .

DICK, J.

The defendants allege in their answer, by way of defence, that the plaintiffs have another suit against these defendants, now pending in the Superior Court of Northampton County, for the same cause; which said suit was commenced before this action was instituted.

There was a demurrer filed to this answer, and on the argument of the demurrer, all the allegations of fact in the answer, must be taken as true. As the matter does not appear on the face of the complaint, the defence was properly set up in the answer, and is in the nature of a plea in abatement of the present action.

The pendency of a former action between the same parties, for the same cause, is a good defence in a second action, and at common law, must be taken advantage of by a plea in abatement.

In a penal action, at the suit of a common informer, the priority of a pending suit, for the same penalty, in the name of a third person, may be pleaded in bar, because the party who first sues is entitled to the penalty. 1 Chit. Pl. 454; Commonwealth v. Churchill, 5 Mass. 174; 1 Saunders Pl., 19.

In our case, as it appears from the facts admitted in the pleadings, that there...