Perry v. Owens, 459

• Decision Date: 02 May 1962
• Docket Number: No. 459,459
• Citation: 257 N.C. 98,125 S.E.2d 287
• Court: North Carolina Supreme Court
• Parties: Viola P. PERRY v. R. G. OWENS, Jr.

Page 287

125 S.E.2d 287

257 N.C. 98

Viola P. PERRY v. R. G. OWENS, Jr.

No. 459

Supreme Court of North Carolina.

May 2, 1962

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 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.

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 demanded does not exceed $1,500.00, exclusive of interest and costs. G.S. § 7-372(3). Appeals may be taken therefrom in the manner prescribed to the superior court 'for errors assigned in matters of law or legal inference.' G.S. § 7-378. The statute (G.S. § 7-351 through G.S. § 7-383) contains no provision for the removal of the entire case to the Superior Court of Durham County upon the filing of a counterclaim wherein the amount demanded by the defendant exceeds $1,500.00, exclusive of interest and costs. Auto Finance Co. of North Carolina v. Simmons, 247 N.C. 724, 102 S.E.2d 119. In this connection, compare the statutory provisions relating to the Municipal-County Court of Guilford County. Standard Amusement Co. v. Tarkington, 247 N.C. 444, 450, 101 S.E.2d 398.

In Auto Finance Co. of North Carolina v. Simmons, supra, this Court held, in passing upon '(t)he crucial question presented,' that the filing of a counterclaim for an amount in excess of $1,500.00, exclusive of interest and costs, did not oust the jurisdiction of the Durham County Civil Court over the plaintiff's claim and entitle the defendant to a removal of the whole case to the superior court for trial. Here, the defendant in the prior action (plaintiff herein), so far as the present record discloses, has not asserted as a counterclaim therein the cause of action alleged in the present complaint or moved that the whole case be removed to the Superior Court of Durham County for trial. As to the action now pending in the Durham County Civil Court, the record discloses no facts as to proceedings therein, if any, subsequent to the summons and complaint. It appears, therefore, that the prior action is now pending in the Durham County Civil Court for determination of the claim asserted by the plaintiff (present defendant) therein.

The Durham County Civil Court has no jurisdiction except that conferred by the statute under which it was established. Moreover, the powers of a court of limited jurisdiction cannot be enlarged by implication. ' City of Greensboro v. Black, 232 N.C. 154, 158, 59 S.E.2d 621, and cases cited. Hence, the Durham County Civil Court, in which defendant's prior action was instituted and is now pending, has no jurisdiction to hear and determine the cause of action alleged in the complaint herein, whether...