Reed v. Carolina Mortg. Co.

• Decision Date: 19 September 1934
• Docket Number: 17.
• Citation: 175 S.E. 834,207 N.C. 27
• Parties: REED et ux. v. CAROLINA MORTG. CO.
• Court: North Carolina Supreme Court

175 S.E. 834

207 N.C. 27

REED et ux. v. CAROLINA MORTG. CO.

No. 17.

Supreme Court of North Carolina

September 19, 1934

Appeal from Superior Court, Jackson County; Alley, Judge.

Action by W. E. Reed and wife against the Carolina Mortgage Company trustee. From an adverse judgment, defendant appeals.

Affirmed.

STACY C.J., dissenting.

Continuing suit to restrain foreclosure under deed of trust until accounting was had, until disputed fact as to plea in abatement based on another action pending was determined by a jury, held not error.

This was a civil action instituted in the superior court of Jackson county on April 16, 1934. The plaintiffs filed complaint alleging that defendant was advertising for sale certain property of the plaintiffs under a deed of trust given by plaintiffs to defendant; that defendant had made certain overcharges for which plaintiffs should be entitled to credits; asking for an accounting and praying the court to restrain the foreclosure sale until the accounting could be had. The defendant filed answer pleading first a suit pending in Wake county as a plea in abatement and then answering generally to the plaintiffs' complaint. A temporary restraining order was issued by Hon. P. A. McElroy and was made returnable April 25, 1934; by consent, the hearing was continued until May 10 1934, before his honor, F. E. Alley, at Waynesville, N. C., and when the cause came on for hearing before said judge, counsel for plaintiffs requested a further continuance in order to file his reply to the defendant's plea in abatement. Thereafter, the case was calendared for trial at May term of Jackson county superior court, being set for Thursday, May 24, 1934. By consent same was continued until May 30, 1934, and then by consent of counsel it was agreed that the matter should be heard at Waynesville before Judge F. E. Alley, on June 1, 1934, and was heard.

After hearing affidavits and argument of counsel, his honor, Felix E. Alley, took the case under advisement by consent of counsel and thereafter rendered the following judgment:

"This cause coming on to be heard before the undersigned resident Judge of the 20th Judicial District, upon the motion of the plaintiffs to continue the temporary restraining order heretofore issued herein until the final hearing, and for a reference, and upon the motion of the defendant to adjudge a plea in abatement in favor of the defendant and to dissolve said restraining order; and the same having been heard by consent at Waynesville, N. C.; and it appearing to the Court that issues of fact arise upon the pleadings with respect to said plea in abatement, which require the intervention of a jury, which should be determined before the Court undertakes to adjudicate the motion for the continuance of said restraining order to the hearing on the merits, for that if said plea in abatement shall be determined in favor of the defendant, the defendant will be entitled to have said injunction dissolved, and further for that if said plea in abatement shall be finally determined in favor of the plaintiffs they will be entitled to a hearing of their said motion for the continuance of said restraining order until the final hearing, and their demand for an accounting herein.

Whereupon, the said cause is continued without prejudice to the rights of either party until such time as the issues raised by the pleadings in reference to said plea in abatement may be determined by a jury, and in the meanwhile the restraining order heretofore issued herein, is continued until such issues have been determined, as aforesaid. This the 1st day of June, 1934. Felix E. Alley, Resident Judge, etc."

To the foregoing judgment, the defendant excepted and assigned error and appealed to the Supreme Court.

W. G. Mordecai, of Raleigh, for appellant.

W. R. Sherrill, of Sylva, and F. E. Alley, Jr., of Waynesville, for appellees.

CLARKSON Justice.

Is the judgment in the court below correct? We think so. The pendency of another suit as a ground of abatement may be taken advantage of by demurrer where it appears from the face of the complaint, N.C. Code 1931 (Michie), § 511, subd. 3 where it does not appear from the face of the complaint by way of answer. Emry v. Chappell, 148 N.C. 327, 62 S.E. 411. In the present action, the defendant in its answer says: "Before answering generally the allegations of the plaintiffs' complaint, the defendant Carolina Mortgage Company enters a plea in abatement and in support of said plea, alleges: (1.) That on the 17th day of ...