Weaver v. Early
| Decision Date | 09 November 1989 |
| Docket Number | No. 581PA88,581PA88 |
| Citation | 385 S.E.2d 334,325 N.C. 535 |
| Court | North Carolina Supreme Court |
| Parties | Jackie Brooks WEAVER v. A. Doyle EARLY, Jr., Margaret Church Weaver Marsh, and Wyatt, Early, Harris, Wheeler & Hauser. |
Lovekin & Ingle by Stephen L. Lovekin, Hickory, for plaintiff appellee.
Petree, Stockton & Robinson by Ralph M. Stockton, Jr., Jeffrey C. Howard and Robert H. Lesesne, Winston-Salem, for defendants appellants.
The plaintiff did not appeal so that the dismissal of the claims against Mrs. Marsh and the dismissal of the claim for false imprisonment against the other defendants are not before us. The six remaining claims against Mr. Early and his law firm are based on what the plaintiff contends was malfeasance in the way Mr. Early had handled the sale of property which he had been ordered to sell by the District Court of Guilford County. The Court of Appeals said, "[w]hile all of these allegations concern matters related to the domestic proceedings in district court, we believe they allege independent, cognizable civil actions over which the superior court has subject matter jurisdiction." We differ with the Court of Appeals.
It is the rule in this state that the pendency of a prior action between the same parties for the same cause in a state court of competent jurisdiction abates a subsequent action in another court of the state having like jurisdiction. Sales Co. v. Seymour, 255 N.C. 714, 122 S.E.2d 605 (1961); Pittman v. Pittman, 248 N.C. 738, 104 S.E.2d 880 (1958); McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860 (1952); Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796 (1952); Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690 (1944); Johnson v. Smith, 215 N.C. 322, 1 S.E.2d 834 (1939); and Atkins v. Nash, 61 N.C.App. 488, 300 S.E.2d 880 (1983). These cases say that the ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of a prior action is whether the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded. This rule has been applied not only when there is a prior civil action pending which is identical to the subsequent action but also when there is a prior action in which a party could by motion in the cause achieve what he is attempting to achieve in the subsequent action. Byerly v. Delk, 248 N.C. 553, 103 S.E.2d 812 (1958) and Lumber Co. v. Wilson, 222 N.C. 87, 21 S.E.2d 893 (1942).
The complaint in this case shows that at the time it was filed there was pending a civil action in the District Court of Guilford County...
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