Diamond Brand Canvas Products Co. v. Christy , 262 N.C. 579 ( 1964 )

138 S.E.2d 218 (1964) 262 N.C. 579

DIAMOND BRAND CANVAS PRODUCTS COMPANY, Inc.
v.
Lola Potter CHRISTY.

No. 28.

Supreme Court of North Carolina.

October 14, 1964.

William J. Cocke, Asheville, and Prince, Jackson, Youngblood & Massagee, Hendersonville, for plaintiff appellant.

Van Winkle, Walton, Buck & Wall and Roy W. Davis, Jr., Asheville, for defendant appellee.

BOBBITT, Justice.

The record shows both actions were instituted in the general county court on May 22, 1963. Whether they were instituted simultaneously does not appear. It does appear that the counterclaim of Christy against Kemp was filed (July 22, 1963) prior to the filing herein (July 29, 1963) of the counterclaim of Christy against Products Company.

The alleged causes of action of Products Company and of Kemp are separate and distinct. Thigpen v. Kinston Cotton Mills, 151 N.C. 97, 65 S.E. 750; Teague v. Siler City Oil Co., 232 N.C. 65, 59 S.E.2d 2; s. c., 232 N.C. 469, 61 S.E.2d 345. Under our decisions, if Products Company and Kemp had asserted their respective claims against Christy in a single action, their complaint and action would have been subject to demurrer and dismissal on the ground of misjoinder of parties and causes of action. "It has been uniformly held by this Court that separate and distinct causes of action set up by different plaintiffs or against different defendants may not be incorporated in the same pleading, and that such a misjoinder would require dismissal of the action." Snotherly v. Jenrette, 232 N.C. 605, 607, 61 S.E.2d 708; Strong, N.C. Index, Vol. III, Pleadings § 18, p. 634.

The plea in abatement asserted by Products Company in its reply is directed to the counterclaim asserted by Christy against Products Company. In the action now pending in the United States District Court, where Kemp is the sole plaintiff and Christy is the sole defendant, Christy has asserted a counterclaim against Kemp.

The rules applicable when considering a plea in abatement on the ground "(t)here is another action pending between the same parties for the same cause" (G.S. § 1-127(3)) are stated, with full citation of authority, by Ervin, J., in McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860, and by Winborne, J. (later C. J.), in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892. Later decisions are cited in Perry v. Owens, 257 N.C. 98, 125 S.E.2d 287.

"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, 31 A.L.R. 2d 436; Pittman v. Pittman, 248 N.C. 738, 104 S.E.2d 880; Wirth v. Bracey, 258 N.C. 505, 128 S.E.2d 810.

We perceive no basis for Products Company's plea in abatement. Products Company is not a party to the action pending in the United States District Court. Kemp and Products Company are not identical parties or in privity but are separate and distinct. Troy Lumber Co. v. Hunt, 251 N.C. 624, 112 S.E.2d 132. A judgment in the action pending in the United States District Court barring Kemp's right to recover would not bar recovery by Products Company in this action. Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688, and cases cited. Nor would a recovery by Christy on her counterclaim against Kemp entitle Christy to a judgment against Products Company. Bullock v. Crouch, 243 N.C. 40, 89 S.E.2d 749, and cases cited. Christy's sole remedy in respect of the cause of action she asserts against Products Company is by way of counterclaim in this action. Hill v. Hill Spinning Co., 244 N.C. 554, 94 S.E.2d 677; Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 119 S.E.2d 910.

There remains for consideration the order allowing Christy to join Kemp as an additional party to the end that Christy may assert herein a cause of action against Kemp as well as a counterclaim against Products Company.

Christy, prior to the institution of the Kemp and Products Company actions, could have sued Kemp, the alleged agent, or Products Company, the alleged principal, or both, on the cause of action she now asserts. Bullock v. Crouch, supra. Moreover, for reasons stated in Adler v. Curle, 254 N.C. 502, 119 S.E.2d 393, and in Bullard v. Berry Coal & Oil Co., supra, we perceive no sound basis for Products Company's objection and exception to the order joining Kemp as a party. It is noted that Kemp is not now a party. If and when Kemp is made a party, such pleas, if any, as he may see fit to interpose will be for consideration and decision.

For the reasons indicated, the rulings of the court below were correct and the judgment entered in accordance therewith is affirmed.

Affirmed.