Pittman v. Pittman , 248 N.C. 738 ( 1958 )

104 S.E.2d 880 (1958) 248 N.C. 738

Catherine Raines PITTMAN; Calvin T. Pittman and wife, Marjorie A. Pittman; Robert Pittman and wife, Doris B. Pittman; and Bernice Pittman Painter and husband, Robert W. Painter,
v.
Nellie Wolfe Cole PITTMAN; Wade Hall, Jr., Administrator of the Estate of Archie Pittman, Deceased; J. Gerald Cowan, Trustee; and Wachovia Bank and Trust Company.

No. 96.

Supreme Court of North Carolina.

September 24, 1958.

Sanford W. Brown, Asheville, for defendant, appellant.

W. Y. Wilkins, Jr., Tryon, and H. Kenneth Lee, Asheville, by H. Kenneth Lee, Asheville, for plaintiffs, appellees.

HIGGINS, Justice.

"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." McDowell v. Blythe Bros. Co., 236 N.C. 396, 72 S.E.2d 860, 862. "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 the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?" Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 798, 31 A.L.R. 2d 436.

The purpose of the proceeding before the clerk was to determine whether the administratrix should be removed. If it be determined there are parties, in the legal sense, to a removal proceeding, the children, heirs at law of the intestate, are not parties in any sense. The parties are not the same, the subject matter is not the same, the relief demanded is not the same. That one of the issues (even though a vital one) is common to both proceedings does not work an abatement of this action. In the removal proceeding the clerk finds the facts. Appeal from his findings must be heard "by the Presiding Judge * * * in his appellate capacity by review of the record * * *." In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421, 422 (citing numerous cases); In re Estate of Johnson, 232 N.C. 59, 59 S.E.2d 223, and cases cited. In this case the jury finds the facts. The foregoing authorities fully sustain Judge Clarkson, and his order in the Superior Court is

Affirmed.

JOHNSON and PARKER, JJ., took no part in the consideration or decision of this case.