Reece v. Reece

• Decision Date: 14 December 1949
• Docket Number: No. 603.,603.
• Citation: 56 S.E.2d 641,231 N.C. 321
• Court: North Carolina Supreme Court
• Parties: REECE. v. REECE.

56 S.E.2d 641

231 N.C. 321

REECE.

v.REECE.

No. 603.

Supreme Court of North Carolina.

Dec. 14, 1949.

Margaret Nance Reece sued Davis J. Reece for subsistence without divorce, and prayed for custody of their child.

The Superior Court for New Hanover County, John J. Burney, J, rendered a judgment for defendant, and plaintiff appealed.

The Supreme Court, Barnhill, J, reversed the judgment, and held that a prior pending action for absolute divorce in which the custody of the child was involved, although a bar to a determination of custody did not preclude the wife from seeking alimony, or counsel fees.

Civil action for subsistence without divorce in which plaintiff prays the custody of the child born of the marriage.

This action was instituted in New Hanover County September 14, 1949. Plaintiff served notice of a motion for "an Order awarding to the Plaintiff reasonable subsistence and counsel fees pendente lite and for the immediate temporary custody of Davis Nance Reece, the child of the marriage * * * " Grady, J., set the motion for hearing before Burney, J., September 24, 1949. Defendant entered a special appearance and moved to dismiss for that (1) there is another action between the same parties for an absolute divorce and for the custody of the child of the marriage pending in Davidson County, which action was instituted September 6, 1949, and (2) the Superior Court of Davidson County having acquired jurisdiction of the parties and the subject matter of the action prior to the institution of this suit, the Superior Court of New Hanover County is without jurisdiction herein.

The motion and countermotion (having been continued from September 24) came on for hearing October 1, 1949 before Burney, J., at which time the court, being of opinion that the Superior Court of Davidson County has sole jurisdiction of the matters in controversy in this cause, entered its order dismissing the action. The plaintiff excepted and appealed.

Walton Peter Burkhimer, Wilmington, for plaintiff appellant.

Allen & Henderson, Elkin, and Aaron Goldberg, Wilmington, for defendant appellee.

BARNHILL, Justice.

The defendant's motion challenges the jurisdiction of the court and is without merit as to plaintiff's primary cause of action. The plea of former action pending is not jurisdictional, though sometimes referred to as such. It is a plea in abatement provided to avoid the splitting of actions and the piecemeal trial of controversies, prevent a multiplicity of suits between the same parties concerning the same subject matter, and eliminate the possibility of conflicting verdicts and judgments based on substantially the same evidence. The court has jurisdiction of the parties and subject of the action. If the plea is not interposed in proper manner, the court may proceed to judgment and the judgment, once entered, is binding upon the parties. City of Raleigh v. Hatcher, 220 N.C. 613, 18 S.E.2d 207; Long v. Jarratt, 94 N.C. 443.

The motion may not be treated as a demurrer to the complaint, for a demurrer is proper only when it appears on the face of the complaint that "3. There is another action pending between the same parties for the same cause * * *." G.S. § 1-127. A speaking demurrer is not permitted. To render the complaint demurrable, that another action is pending must appear on the face of the complaint. Otherwise the plea must be taken advantage of by answer. Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119; Reed v. Carolina Mortgage Co., 207 N.C. 27, 175 S.E. 834; Fletcher Lumber Co. v. Wilson, 222 N.C. 87, 21 S.E.2d 893; Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690.

Even so, plaintiff admitted the pendency of the divorce action. The court was thereby advised of the possible conflict of jurisdiction, and might take notice thereof ex mero motu. Long v. Jarratt, supra; Allen v. Salley, 179 N.C. 147, 101 S.E. 545. We may, therefore, waive the procedural defects in defendant's position and come to the merits of the controversy.

The court below is without jurisdiction to hear and determine the custody of the child. When a divorce action is pending, jurisdiction over the custody of the children born of the marriage rests exclusively in the court before whom the divorce action is pending. G.S. § 50-13; Winfield v. Winfield, 228 N.C. 256, 45 S.E. 2d 259; Robbins v. Robbins, 229 N.C. 430, 50 S.E.2d 183; Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906. The plaintiff here must press her claim to the custody of her child in the divorce action pending in Davidson...