McDowell v. Blythe Bros. Co.

72 S.E.2d 860 (1952) 236 N.C. 396

McDOWELL
v.
BLYTHE BROS. CO., Inc.

No. 391.

Supreme Court of North Carolina.

November 5, 1952.

Ottway Burton, Asheboro, for plaintiff, appellee.

Cochran, McCleneghan & Miller, Charlotte, and Miller & Moser, Asheboro, for defendant, appellant.

ERVIN, Justice.

The appeal presents the single question whether the presiding judge erred in overruling the demurrer interposed by the defendant on the ground that the complaint discloses upon its face that there is another action pending between the plaintiff and the defendant for the same cause within the purview of the statute codified as G.S. § 1-127.

The pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works an abatement of a subsequent action either in the same court or in another court of the State having like jurisdiction. Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796; Seawell v. Purvis, 232 N.C. 194, 59 S.E.2d 572; Brothers v. Bell Bakeries, Inc., 231 N.C. 428, 57 S.E.2d 317; Whitehurst v. Hinton, 230 N.C. 16, 51 S.E.2d 899; Taylor v. Schaub, 225 N.C. 134, 33 S.E.2d 658; Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690; O'Briant v. Bennett, 213 N.C. 400, 196 S.E. 336; Bowling v. Fidelity Bank, 209 N.C. 463, 184 S.E. 13; Brown v. Polk, 201 N.C. 375, 160 S.E. 357; Murchison Nat. Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L. R. 656; Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729; Crouse v. York, 192 N.C. 824, 135 S.E. 451; Bradshaw v. Citizens' Bank, 175 N.C. 21, 94 S.E. 674; Carpenter, Baggott & Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101; Emry v. Chappell, 148 N.C. 327, 62 S.E. 411; Ridley v. Seaboard & Railroad Co., 118 N.C. 996, 24 S.E. 730, 32 L.R.A. 708; McNeill v. Currie, 117 N.C. 341, 23 S.E. 216; Long v. Jarratt, 94 N.C. 443; Redfearn v. Austin, 88 N.C. 413; Smith v. Moore, 79 N.C. 82; State v. Atlantic & N. C. R. R. Co., 77 N.C. 299; Claywell v. Sudderth, 77 N.C. 287; Sloan v. McDowell, 75 N.C. 29; Woody v. Jordan, 69 N.C. 189; Harris v. Johnson, 65 N.C. 478; Casey v. Harrison, 13 N.C. 244. The law decrees that the second action is abated by the action which is first in point of time because the court can dispose of the entire controversy in the prior action and in consequence the subsequent action is wholly unnecessary. Lineberger v. City of Gastonia, 196 N.C. 445, 146 S.E. 79; 1 C.J.S., Abatement and Revival, § 33. An action is pending for the purpose of abating a subsequent action between the same parties for the same cause from the time of the issuance of the summons until its final determination by judgment. McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833; Atkinson v. Greene, 197 N.C. 118, 147 S.E. 811; Morrison v. Lewis, supra; J. A. Jones Construction Co. v. Hamlet Ice Co., 190 N.C. 580, 130 S.E. 165; Pettigrew v. McCoin, 165 N.C. 472, 81 S.E. 701, 52 L.R.A., N.S., 79.

Under the statute codified as G.S. § 1-127, the defendant must take advantage of the pendency of a prior suit between the same parties for the same cause by demurrer when the fact of such pendency appears on the face of the complaint; and under the statute embodied in G.S. § 1-133, the defendant must take advantage of the pendency of a prior suit between the same parties for the same cause by answer when the fact of such pendency does not appear on the face of the complaint. Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641; Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892; Fletcher Lumber Co. v. Wilson, 222 N.C. 87, 21 S.E.2d 893; Thompson v. Virginia & C. S. R. R. Co., 216 N.C. 554, 6 S.E.2d 38; Johnson v. Smith, 215 N.C. 322, 1 S.E.2d 834; Reed v. Carolina Mortgage Co., 207 N.C. 27, 175 S.E. 834; Allen v. Salley, 179 N.C. 147, 101 S.E. 545; Cook v. Cook, 159 N.C. 46, 74 S.E. 639, 40 L.R.A.,N.S., 83, Ann. Cas.1914A, 1137; Emry v. Chappell, supra; Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119; Curtis v. Piedmont Lumber & Mining Co., 109 N.C. 401, 13 S.E. 944; Hawkins v. Hughes, 87 N.C. 115; Smith v. Moore, supra; Harris v. Johnson, supra; Rogers v. Holt, 62 N.C. 108. The objection that a prior action is pending between the same parties for the same cause is waived unless it is raised in the mode appointed by law. G.S. § 1-134; Reece v. Reece, supra; State v. Gant, 201 N.C. 211, 159 S.E. 427; Montague v. Brown, 104 N.C. 161, 10 S.E. 186; Blackwell v. Dibbrell, 103 N.C. 270, 9 S.E. 192.

Since a demurrer is itself a critic, it ought to be free from imperfections. Williams v. Seaboard Air-Line Ry. Co., 165 Ga. 655, 141 S.E. 805. The only office of a demurrer is to test the legal sufficiency of the facts stated in the pleading of an adversary. In consequence, it is not permissible for a demurrant to incorporate in his demurrer facts not shown by the pleading challenged by the demurrer. Where a demurrer to a complaint involves the aid of a supposed fact which does not appear in the complaint, it is a "speaking demurrer," and offends both the common law and code systems of pleading. The court will not consider the supposed fact introduced by the "speaking demurrer" in passing on the legal sufficiency of the facts alleged in the complaint. Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371; Nall v. McConnell, 211 N.C. 258, 190 S.E. 210; Morrow v. Cline, 211 N.C. 254, 190 S.E. 207; Ball v. City of Hendersonville, 205 N.C. 414, 171 S.E. 622; Southerland v. Harrell, 204 N.C. 675, 169 S.E. 423; Ellis v. Perley, 200 N.C. 403, 157 S.E. 29; Hamilton v. City of Rocky Mount, 199 N.C. 504, 154 S.E. 844; Reel v. Boyd, 195 N.C. 273, 141 S.E. 891; Ideal Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; Latham v. Pasquotank Highway Commission, 185 N.C. 134, 116 S.E. 85; Moody v. Wike, 170 N.C. 541, 87 S.E. 350; Wood v. Kincaid, 144 N.C. 393, 57 S.E. 4; Davison v. Gregory, 132 N.C. 389, 43 S.E. 916; Von Glahn v. De Rossett, 76 N.C. 292; 71 C.J.S., Pleading, § 256.

The task of applying the relevant rules to the case at bar must now be performed. The demurrer under scrutiny is a "speaking demurrer," for it invokes the aid of supposed facts which do not appear in the complaint. When these supposed facts are disregarded and recourse is had to the complaint itself, it is plain that the only facts properly before the court having any pertinency to the legal question raised by the demurrer are those set out in the extraneous allegation "that the defendant, in order to harass the plaintiff, instituted a suit in Mecklenburg County after this suit had been instituted about the identical matters and things in this complaint."

While this allegation does state that this action and the Mecklenburg suit are between the same parties for the same cause, it does not aver that the Mecklenburg suit is the prior action. Indeed, it makes the diametrically opposite assertion that this action is the first one in point of time and that the Mecklenburg suit was brought "after this suit had been instituted." This being true, the judgment overruling the demurrer must be affirmed.