Vinson v. . O'Berry , 209 N.C. 289 ( 1936 )

DEVIN, J., took no part in the consideration or decision of this case. The allegation of the complaint upon which it is thought the original jurisdiction of the Court may properly be invoked is "that the defendant North Carolina Emergency Relief Administration is a State agency, existing under the laws of the State of North Carolina; and that at all times hereinafter mentioned the defendants Annie L. O'Berry, John H. Bass, Ben W. Southerland, and Jim Coleman were acting in their official capacity as agents and representatives of North Carolina Emergency Relief Administration."

Then follows claim for unliquidated damages arising out of alleged breach of contract and tortious interference with plaintiff's contract rights in almost identical language with that appearing in the complaint filed in the case of Vinson v. O'Berry, on appeal from Wayne Superior Court, ante, 287.

The defendants named in the summons and complaint demur for want of jurisdiction. The State, appearing specially, moves to dismiss. The allegations of the complaint present no serious question of law, and the facts stated therein are not sufficient to invoke the original jurisdiction of the Supreme Court. Cohoon v. State, 201 N.C. 312,160 S.E. 183; Warren v. State, 199 N.C. 211, 153 S.E. 864; Lacy v. State,195 N.C. 284, 141 S.E. 886.

Moreover, it appears on the face of the complaint that another action between the same parties, involving the same subject matter, is now pending on appeal from Wayne Superior Court, Vinson v. O'Berry, ante, 287, albeit the plaintiff says in his brief he is seeking injunctive relief there and damages here. Still this is not only taking two bites at the cherry, but biting in two places at the same time.

The proceeding must be dismissed for want of jurisdictional showing.

Proceeding dismissed.

DEVIN, J., took no part in the consideration or decision of this case.