Whedbee v. . Leggett

In this action both parties appeal to this court.

The defendant alleged error in the court in granting the motion of the plaintiffs to enter a non-suit as to their cause of action. In this there was error. A counter-claim is in effect a cross action, and, when well pleaded, the defendant becomes an actor, and there are two simultaneous actions depending in the same proceding [proceeding] between the same parties, and each has the right to have all the matters put in issue by the pleadings adjudicated, and neither has the right to go out of court before a complete determination of all the matters in controversy without the consent of the other. This was held to be the rule of practice in the case of Francis v. Edwards, 77 N.C. 271, and the decision there is decisive of this case. The court then held that when a counter-claim is duly pleaded, neither party has the right to go out of court before a complete determination of all the matters in controversy, without or against the consent of the other, and when the court below permitted the plaintiff to take a non-suit, it was error. Purnell v. Vaughan, 80 N.C. 46.

There is a distinction in counter-claims set up as a defence under sec. 244 of The Code, which has not been taken or adverted to in the decisions upon the subject heretofore made, that, we think, should be observed.

The first subdivision under that section is "a cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiffs' claim, or connected with the subject of the action," and second, "In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action."

The distinction is this. When a counter-claim such as is authorized by the first subdivision is set up, then we think the plaintiff should not be permitted to enter a non-suit, without the consent of the defendant, for the reason that as it is a connected transaction and cause of action the whole matter in controversy between the parties should be determined by the one action.

But when the counter-claim is an independent cause of action arising on contract, such as is provided by the second subdivision, then we can see no reason why the plaintiff may not enter a non-suit if he should choose to do so. But when the plaintiff in such a case does enter a non-suit, the defendant should be permitted at his election, to withdraw his counter-claim, which would terminate the action, or proceed to trial with his counterclaim, if it is traversed, or move for judgment against the plaintiff if its allegations are not denied, as in actions upon contracts by a plaintiff against a defendant.

Our case comes within the first subdivision, and it was not, therefore, necessary in deciding this case to refer to the distinction above made, but holding, as we do, that the distinction is a good one, we have deemed it proper to mention it here, as an intimation of the Court for the guidance of practitioners in the future.

Our conclusion upon the case before us is that there was error, and the judgment of non-suit rendered in the court is reversed, and the case remanded that it may be proceeded with in conformity to this opinion and the law.

Error. Reversed and remanded.