A. M. Sloan & Co. v. McDowell , 75 N.C. 29 ( 1876 )

The rights and liabilities of the parties, as they were then before us, were declared in 71 N.C. 356. We then held that under C. C. P., sec. 248, the defendant was entitled to set up his claim against one of the plaintiffs as a counterclaim.

We now have the case before us upon two points:

1. First, is a suit pending in the Circuit Court of the United States for the State of Georgia by the defendant, McDowell, against one of the plaintiffs, Sloan, for this same counterclaim a bar (33) to its being set up in this action?

The impolicy and injustice of pursuing a man in several suits at the same time for the same cause of action seem scarcely to lie at the defendant's door in this case. He sued one of the plaintiffs, Sloan, in the United States Court in Georgia, and Sloan, instead of offering it as a defense in that suit, unites with the other plaintiff to prosecute a claim against the defendant in this Court. And the defendant simply says, well, as you have chosen this forum I will contend with you here. So that it is the plaintiff Sloan, and not the defendant, who is multiplying suits. To this, however, the plaintiffs reply that they could not have used their claim as a setoff or counterclaim to the defendant's claim in the United States Courts. How that is, we do not know. It is not so alleged in the pleadings.

The provision in C. C. P., sec. 95, allowing as cause for demurrer that there is another action pending between the same parties for the same cause, must be confined to the courts of the State, where the remedies are precisely the same; the object being to protect parties from vexation and the courts from multiplicity of suits. But in different states or governments the remedies are not the same, and there may be reasons why our courts should not take notice of proceedings outside of the State which would be applicable to our courts.

The general bearing upon the subject may be seen in 1 Robinson's Practice, p. 323-6. It has been held in New York that a suit pending in Massachusetts for the same cause could not be pleaded in New York. Brownev. Joy, 9 Johns, 221. And so it was held of a suit pending in the Court of the United States for the District of Virginia. Walsh v. Durbin, 12 Johns, 99. The same is also the English doctrine in regard to suits in foreign countries and in her provinces.

2. The entries of a merchant's clerk are not evidence against (34) third persons. It would be very dangerous if they were. They are not under oath and not subject to cross-examination. The clerk himself must be produced. If his memory be at fault it may be that he can refresh it by his entries — that is all.

PER CURIAM. No error.

Cited: Redfearn v. Austin, 88 N.C. 415; Curtis v. Piedmont Co.,109 N.C. 405; Kesterson v. R. R., 146 N.C. 277; Roberts v. Pratt,152 N.C. 738; Carpenter v. Hanes, 162 N.C. 50; Ball-Thrash v. McCormick,ib., 473.