Marshall Motor Co. v. Universal Credit Co.
| Decision Date | 26 February 1941 |
| Docket Number | 20. |
| Citation | 13 S.E.2d 230,219 N.C. 199 |
| Parties | MARSHALL MOTOR CO. v. UNIVERSAL CREDIT CO. |
| Court | North Carolina Supreme Court |
This action was instituted by plaintiff for the recovery of the statutory penalty for usury. The complaint sets out numerous separate transactions wherein it is alleged usury was charged by the defendant and paid by the plaintiff. Defendant interposed demurrer and motion to dismiss, which were denied by the court below, and defendant appealed. Three other actions between the same parties, involving identical questions, were consolidated herewith for the purposes of the appeal.
The facts material to the questions presented may be summarized as follows: The plaintiff is a North Carolina corporation and the defendant is a corporation of the State of Delaware. November 16, 1938, plaintiff instituted action for usury arising out of 191 separate and independent transactions extending over the period from November 19, 1936, to December 10, 1937. The total amount claimed was in excess of $15,000. Upon petition the cause was removed to the U. S. District Court. In that forum plaintiff submitted to a voluntary nonsuit January 21, 1939, and thereafter instituted in the state court four separate actions against the defendant on the identical causes of action set out in the original suit that is, one action instituted September 15, 1939, embraced 81 of the transactions originally complained of, another action instituted January 5, 1940, embraced 27 of these transactions, another instituted January 5, 1940, embraced 13 of these transactions, and a fourth action instituted January 6, 1940, embraced the remaining 70 of the transactions set out in the original complaint. In none of these four cases was the sum demanded as much as $3,000.
Defendant sought to remove these actions to the U. S. District Court on the ground that they were in effect one suit, and that the aggregate of the sums demanded brought them within the jurisdiction of the Federal Court. The U. S. District Judge being of opinion that plaintiff had a right to maintain separate actions for the different transactions embodied in the original complaint, and that the U. S. Court was without jurisdiction, remanded the cases to the State Court.
Defendant thereupon in the State Court, in apt time, entered demurrer and motion to dismiss in each of the four suits, chiefly upon the ground that the plaintiff, having in its original suit joined 191 transactions, had elected a joinder of causes of action from which it could not thereafter escape, and that the new action after nonsuit must be founded upon the same transaction alleged in the original action, and could not be divided into separate actions, each relating only to distinct portions of the items originally complained of; and that in these suits, by eliminating successively portions of the items embodied in the original suit, plaintiff had abandoned the causes of action represented by those items, and could not now sue on them.
Defendant further contended that the causes of action set up in the four suits were barred by the statute of limitations, and that the nonsuit in the original action, under the facts here appearing, could not avail the plaintiff to prevent the bar of the statute, even though the new suits were brought within one year of the nonsuit. The defendant also called attention to the fact that plaintiff on January 26, 1939, instituted an action based on certain of the items in the original suit and thereafter in March, 1939, submitted to a voluntary nonsuit as to that action.
Defendant's demurrer was overruled, and the motion to dismiss was denied in each of the four cases, and defendant excepted and appealed to this court.
C L. Shuping and G. C. Hampton, Jr., both of Greensboro, for appellant.
P W. Glidewell, Sr., and J. C. Brown, both of...
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