Weaver v. Early , 325 N.C. 535 ( 1989 )

385 S.E.2d 334 (1989) 325 N.C. 535

Jackie Brooks WEAVER
v.
A. Doyle EARLY, Jr., Margaret Church Weaver Marsh, and Wyatt, Early, Harris, Wheeler & Hauser.

No. 581PA88.

Supreme Court of North Carolina.

November 9, 1989.

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.

WEBB, Justice.

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 in which the court had ordered Mr. Early to dispose of certain property and use the proceeds of the sale in a certain way. The district court could make this order. Lambeth v. Lambeth, 249 N.C. 315, 106 S.E.2d 491 (1959). Mr. Early is accountable to the District Court of Guilford County for his action in selling the property. The plaintiff may enforce all the rights he has in regard to the sale of this property by a motion in the cause in the district court. The complaint shows there is an identity of parties, subject matter, issues involved and relief demanded between this case and the action in the district court which was pending when this case was filed. This case was properly dismissed in the Superior Court of Guilford County.

For the reasons stated in this opinion we reverse the Court of Appeals as to the matters appealed from by the defendants.

REVERSED.