Allen v. McDowell , 236 N.C. 373 ( 1952 )

72 S.E.2d 746 (1952) 236 N.C. 373

ALLEN
v.
McDOWELL.

No. 387.

Supreme Court of North Carolina.

October 29, 1952.

Prevette & Coltrane, Asheboro, for plaintiff appellee.

Ottway Burton, Asheboro, for defendant appellant.

WINBORNE, Justice.

The pivotal question here is this: Where at the time of the commencement of an action in Superior Court, there is another action pending in same court between same parties for the same cause, and defendant files answer therein, pleading in abatement thereof the pendency of the former action, and, before hearing on the plea, plaintiff takes voluntary nonsuit in the former action, may the plea be overruled?

Defendant cites, and upon the case of Curtis v. Piedmont Lumber & Mining Co., 109 N.C. 401, 13 S.E. 944, in support of his contention that the court should have sustained the plea and dismissed the action. A reading of the opinion there seems to support his position.

But, on the other hand, plaintiff cites and relies in the main upon the case of Cook v. Cook, 159 N.C. 46, 74 S.E. 639, 640, 40 L.R.A.,N.S., 83, in support of his contention that the court properly overruled the plea, and denied motion to dismiss the action. A reading of the opinion there supports his position.

Thus divergent opinions have been expressed in these cases. However, we think, and hold, that the Cook case presents the better view. There, in opinion by Hoke, J., the Court said: "As a general rule, this right to plead the pendency of another action between the same parties before judgment had is regarded to a large extent as a rule of convenience, resting on the principle embodied in the maxim, ``Nemo debet bis vexare,'" that is, that "No one should be twice harassed for the same cause". Black's Law Dictionary. And the Court continued by saying: "The defect is one that can be waived, and it may also be cured by dismissing the prior action at any time before the hearing", citing Grubbs v. Ferguson, 136 N.C. 60, 48 S.E. 551. See also Brock v. Scott, 159 N.C. 513, 75 S.E. 724, and also Kesterson v. Southern R. Co., 146 N.C. 276, 59 S.E. 871; Barnett v. Cliffside Mills, 167 N.C. 576, 83 S.E. 826; Reed v. Carolina Mortgage Co., 207 N.C. 27, 175 S.E. 834. McIntosh N.C. P & P 479-480, Annotation 118 A.L.R. 1477. Compare Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690.

Applying the ruling in the Cook case to case in hand, a single action remains, and defendant will not be twice vexed for the same cause.

Other assignments of error have been given due consideration, and in them error is not made to appear. Hence, in the judgment from which appeal is here taken, we find no error.