Hawkins v. . Hughes

The court is inclined to the opinion, inasmuch as the defendant debtor had no estate, and never had, in the land which is the subject of controversy, that, perhaps, a distinction might be drawn between the present case and Hinsdale v. Sinclair, 83 N.C. 338, and McCaskill v.Lancashire, Ib., 393, in support of the plaintiffs' right to have their independent action. But, though very ably argued at the bar, we have not felt called upon to decide that point, nor how far the court might have restricted them, in case objection had been made in apt time, to such relief as might have been had in their former action. For conceding the point to be against the plaintiffs, and that they not only could, but should have sought relief by proceedings supplementary to execution, we are still of the opinion that it was too late for the defendants to make their objection after verdict.

A party cannot have the benefit of a plea in abatement upon a motion in arrest of judgment; and such in effect is the motion which the defendants now make.

The pendency of a former action is strictly a matter of abatement, and must be set up in the answer or in some way, be insisted on before a trial upon the merits; if not, it is considered to be waived.

In Smith v. Moore, 79 N.C. 82, it is expressly said, that if two actions are between the same parties for the same cause, and the first is so constituted as to afford complete relief, the second (118) is unnecessary and will be dismissed; but that the pendency of such other action will not be noticed by the court unless it appear of record by answer or demurrer.

Again in Winfield v. Burton, 79 N.C. 388, which was an action brought upon a bond given for the purchase money for land sold by order of court in a proceeding for partition, which proceeding was still pending, RODMAN, J., Referring to the very point now made for the present defendants, observed, that regularly the relief ought to have been sought by motion in the original cause, but that it was an irregularity, merely, to have brought the action, which could be waived and accordingly it was so treated.

It is said, however, that it is a question of jurisdiction which can neither be conferred by consent, nor the lack of it waived by the act of the party. True, this is so, where there is a defect of jurisdiction in the court itself, so that it has no general jurisdiction over the subject matter of the action. But it is otherwise, where the court has such a general jurisdiction, and the lack of it in a particular case depends upon some exceptional matter, such as the pendency of a previous action, or the existence of some peculiar privilege or exemption on the said of the defendant. In such case, it is a matter of defence and must be taken inlimine, or else not at all Walton v. Walton, 80 N.C. 26; Branch v.Houston, 44 N.C. 85.

Now it will not be doubted that the superior court, by virtue of its powers as a court of equity, has a general jurisdiction of an action, such as this is, to follow the funds of a debtor fraudulently converted into land conveyed to his wife. And the only reason that can be suggested why it should not exercise it in this particular case, is, the fact that there is a former action pending, in which the plaintiffs could have complete relief. Had this objection been taken in time — such is the disfavor with which the law regards a multiplicity of actions — it might have availed the defendants, and would have done so, unless, as we intimated at the outset, the present case be an (119) exception to the rule. But not having been thus taken, and the court having a general jurisdiction of the subject matter of the action, it now comes too late.

No error. Affirmed.

Cited: Hunter v. Yarborough, 92 N.C. 70; Lackey v. Pearson, 101 N.C. 655;Montague v. Brown, 104 N.C. 164; Hicks v. Beam, 112 N.C. 645;Davis v. Terry, 114 N.C. 31; Smith v. Lumber Co., 140 N.C. 378; Baxterv. Irvin, 158; N.C. 281; Warren v. Susman, 168 N.C. 462; Brown v. Polk,201 N.C. 376; St. Dennis v. Thomas, 235 N.C. 393; McDowell v. BlytheBrothers Co., 236 N.C. 399.