Hawkins v. . Hughes

Ruffin, J. 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 presentcase and Hinsdale v. Sinclair, 83 N. C., 338, and Caskill 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.ti-me, to such relief asmight have been bad 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 theop-inion 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 wbicb 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 -o-n’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, *118 tbe second 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 lias no general jurisdiction over the subject matter of tire-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 side of the defendant. In such case, it is a matter of defence and must be taken in limine, or else not at all. Walton v. Walton, 80 N. C., 26; Branch v. Houston, Busb. 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 defend *119 ants, and would have done so, unless, as we intimated at the outset, the present case be an 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. • Affirrqed. ■