Perry v. Owens, No. 459
| Docket Nº | No. 459 |
| Citation | 257 N.C. 98, 125 S.E.2d 287 |
| Case Date | May 02, 1962 |
| Court | United States State Supreme Court of North Carolina |
Page 287
v.
R. G. OWENS, Jr.
Everett, Everett & Everett, Durham, for plaintiff appellant.
Smith, Leach, Anderson & Dorsett, Raleigh, for defendant appellee.
BOBBITT, Justice.
The complaint herein contains no reference to the prior action instituted by the present defendant against the present plaintiff in the Durham County Civil Court and now pending in said court. Hence, assuming said prior action 'is another action pending between the same parties for the same cause,' within the meaning of G.S. § 1-127(3), defendant was required by G.S. § 1-133 to assert his plea in abatement by answer. McDowell v. Blythe Brothers Co., 236 N.C. 396, 399, 72 S.E.2d 860, and cases cited; Buchanan v. Smawley, 246 N.C. 592, 99 S.E.2d 787; Wallace v. Johnson, 251 N.C. 11, 17, 110 S.E.2d 488; Demoret v. Lowery, 252 N.C. 187, 113 S.E. 2d 199.
'The pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works an abatement of a subsequent action either in the same court or in another court of the State having like jurisdiction.' (Our italics.) McDowell v. Blythe Brothers Co., supra, and cases cited; Pittman v. Pittman, 248 N.C. 738, 104 S.E.2d 880; W. S. Boyd Sales Co. v. Seymour, 255 N.C. 714, 122 S.E.2d 605.
'Defendant's plea in abatement is good only if (1) the plaintiffs herein could obtain the same relief by counterclaim in said prior action, and (2) a judgment in favor of the plaintiff in said prior action (defendant herein) would operate as a bar to plaintiffs' prosecution of this action. Cameron v. Cameron, 235 N.C. 82, 86, 68 S.E.2d 796, 31 A.L.R.2d 436, and cases cited.' (Our italics.) Hill v. Hill Spinning Co., 244 N.C. 554, 557, 94 S.E.2d 677; Demoret v. Lowery, supra.
Clearly, defendant's plea in abatement would be allowed and the present action
Page 290
dismissed if the present defendant had instituted the prior action in the Superior Court of Durham County. Allen v. Salley, 179 N.C. 147, 101 S.E. 545; Johnson v. Smith, 215 N.C. 322, 1 S.E.2d 834; Boney v. Parker, 227 N.C. 350, 42 S.E.2d 222; Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892; Brothers v. Bell Bakeries, 231 N.C. 428, 57 S.E.2d 317; Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 119 S.E.2d 910. The defendant in such prior action would have a 'complete remedy' by way of counterclaim therein. Boney v. Parker, supra.The crucial question now presented arises from the fact that the present defendant, who was legally entitled to do so, instituted his prior action in the Durham County Civil Court, a court of limited jurisdiction.
[257 N.C. 101] The Durham County Civil Court was established under the statute now codified as G.S. Chapter 7, Article 35, and has jurisdiction concurrent with the superior court in tort actions wherein the amount...
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In re Miller, No. 303PA02.
...which the court is established and functions." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953); see also Perry v. Owens, 257 N.C. 98, 101-02, 125 S.E.2d 287, 290 (1962); State v. Hall, 142 N.C. 710, 713, 55 S.E. 806, 807 (1906). Subject matters of privilege and protected info......
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Wirth v. Bracey, Nos. 528
...by Winborne, J. (later C.J.), in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892. Later decisions are cited in Perry v. Owens, 257 N.C. 98, 125 S.E.2d 287. Our decisions, beginning with Allen v. Salley, 179 N.C. 147, 101 S.E. 545, relate primarily to a factual situation where the p......
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Diamond Brand Canvas Products Co. v. Christy, No. 28
...by Winborne, J. (later C. J.), in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892. Later decisions are cited in Perry v. Owens, 257 N.C. 98, 125 S.E.2d 'The ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of th......
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Clifton v. Turner, No. 534
...would be guilty of negligence if, under the circumstances, he failed to exercise due care to avoid a collision with defendant's car. [257 N.C. 98] Whether the jury erred in resolving the issues in favor of plaintiff is not for our determination. Suffice to say, defendant's assignments of er......
-
In re Miller, No. 303PA02.
...which the court is established and functions." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953); see also Perry v. Owens, 257 N.C. 98, 101-02, 125 S.E.2d 287, 290 (1962); State v. Hall, 142 N.C. 710, 713, 55 S.E. 806, 807 (1906). Subject matters of privilege and protected info......
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Wirth v. Bracey, Nos. 528
...by Winborne, J. (later C.J.), in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892. Later decisions are cited in Perry v. Owens, 257 N.C. 98, 125 S.E.2d 287. Our decisions, beginning with Allen v. Salley, 179 N.C. 147, 101 S.E. 545, relate primarily to a factual situation where the p......
-
Diamond Brand Canvas Products Co. v. Christy, No. 28
...by Winborne, J. (later C. J.), in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892. Later decisions are cited in Perry v. Owens, 257 N.C. 98, 125 S.E.2d 'The ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of th......
-
Clifton v. Turner, No. 534
...would be guilty of negligence if, under the circumstances, he failed to exercise due care to avoid a collision with defendant's car. [257 N.C. 98] Whether the jury erred in resolving the issues in favor of plaintiff is not for our determination. Suffice to say, defendant's assignments of er......