Emry v. . Chappell

Walkeb, J., after stating the case: The record shows that the suit of Emry v. Chappell was commenced on 6 May, 1908, that being the day on which the summons was delivered *330 by the Clerk to the Sheriff, as appears by the latter’s endorsement on the process. Smith v. Lumber Co., 142 N. C., 26; Webster v. Sharpe, 116 N. C., 466. The order of reference in Lyon & Montague v. Emry & Chappell was made, with the consent of the parties, on 27 April, 1908. We refer to this matter, as it was contended by the plaintiff’s counsel that this action was commenced before the reference was ordered. Pleas in abatement, being dilatory pleas, are not favored at common law or under The Code, and can be used only to present matter which defeats the present action. If the right of action is denied, the facts upon which the denial rests must be pleaded in bar, but the abatement of a suit is the complete termination of it at law, and the abatement of the main action abates proceedings ancillary or collateral to it. The general principle of the law is that the pendency of a prior suit for the same thing or, as is commonly said, for the same cause of action between the same parties in a court of competent jurisdiction will abate a later suit, because the law abhors a multiplicity of suits and will not permit a debtor or a defendant to be harassed or oppressed by two actions, if even substantially alike, to recover the same demand, when the plaintiff in the second action can have a complete remedy by one of them. 1 Cyc., 20-21; Alexander v. Norwood, 118 N. C., 381; McNeill v. Currie, 117 N. C., 341; Harris v. Johnson, 65 N. C., 478. The principle is based upon the supposition that, if the first suit is so constituted as to be effective and available, and also to afford an ample remedy to the plaintiff in the second, the latter is unnecessary and should be dismissed. Smith v. Moore, 79 N. C., 82. The positions of the respective parties on the record in the two suits, whether plaintiffs or defendants, is not material, if .full relief can be had in the one first commenced. Gray v. Railroad, 77 N. C., 299; Wallace v. Robinson, 41 N. H., 286. It is held in Wallace v. Robinson, *331 supra, that, when one partner brings a suit against Ms co-partners for an account, all tbe parties are to be regarded as actors, and tbe judgment should settle the partnership concerns between all the partners, as if each was a complainant in a suit against his copartners. In Crane v. Larsen, supra, the Court held that The Code allows the fact that there is another action or suit pending between the same parties for the same cause to be pleaded by Avay of ansAver, Avhen it does not- appear from the face of the complaint, the eA-ident object of this provision being to prevent unnecessary litigation and to avoid a second lawsuit where the identical matter is at issue between the same parties in a former one, and if there were other parties in the first suit not included in the subsequent one it would not necessarily prevent the pendency of the former action from being a defense to the latter, nor would the fact that the parties, plaintiff and defendant, were reversed in the tAvo suits prevent the defense, if the issue in the two were the same, and the same relief attainable. The only question, therefore, is Avhether the plaintiff in this action can have the same relief he now seeks in the former suit. We think it clear that he can. The matters in-A'olved in the two suits, as between him and his copartner Chappell, are precisely the same and, at least, substantially identical. Lie can by answer in the 'former suit obtain the same relief he asks for in this independent action, and he can, also, by proper application to the court, have such ancillary remedies as may be required to protect his interests pending the litigation, if this kind of relief is necessary to complete the identity of the two actions. It may be that the plaintiff in the former suit was entitled to judgment, notwithstanding the answer by Chap-pell, Emry having failed to answer, and that Chappell could not litigate partnership controversies, as betAveen him and Emry, in that suit, upon the ground that they do not relate *332 to and kave no connection with the plaintiff’s canse of action and constitute no defense thereto, but this matter is not before ns. It is a question of pleadings and procedure, and not one of jurisdiction, and if there was.any irregularity or defect in the proceedings it was waived by the consent of the parties to the order of reference. It was stated by counsel at the hearing of this case in this Court that the plaintiff, Emry, had moved in the former action to strike out the reference, for the reason that he had not, in fact, consented to it, and that his motion had not been passed upon. It may be that, by motion in the cause and an amendment of the record, and by proper pleading with reference to the answer of Chappell in the former suit, it may be shown that relief cannot be had therein by the plaintiff in that case. We do not decide this question, as it is not before us. The Judge of the Superior Court may in his discretion stay further action in this case until the plaintiff can have an opportunity to correct the record in the former suit, if it can be corrected so as to avail him in this action, dr he may dismiss this case and require the plaintiff to start anew after having the record in the other suit amended. The plaintiff can proceed in the matter as ho may be advised. All we decide now is that the court committed an error in overruling the defendant’s motion to dismiss, in the present state of the record in the former action, as the plaintiff can have full relief therein. Error.