Buchanan v. . Feldspar Milling Co.

BbogdbN, J. The defendant, on 2 January, instituted an action against the plaintiff in Yancey County. Thereafter, on 16 January, the plaintiff instituted the present action against the defendant in Mitchell County upon essentially the same cause of action. The defendant demurs in the Mitchell County suit under C. S., 511, upon the ground that the same action is pending and at issue upon complaint and answer in Yancey County. Upon this state of facts, the question of law is: Can the pendency of another action between the same parties for the same cause of action, not appearing upon the face of the complaint, be taken advantage of by demurrer ? The law answers the question in the negative. Alexander v. Norwood, 118 N. C., 381, 24 S. E., 119; Allen v. Salley, 179 N. C., 147, 101 S. E., 545; Brick Co. v. Gentry, 191 N. C., 636, 132 S. E., 800; Lineberger v. Gastonia, 196 N. C., 445, 146 S. E., 79; Justice v. Sherard, 197 N. C., 237, 148 S. E., 241; McIntosh North Carolina Practice and Procedure, p. 451, sec. 440. In McIntosh, supra, the author says: “If it appears upon the complaint that there is another action pending between the same parties for the same cause, it is ground for demurrer, and if it does not so appear the objection is made by answer. This does not mean that the suits must be between the same parties as plaintiffs and defendants, and about the identical cause of action; but if the parties are the same, either as plaintiffs or defendants, though there may be other parties also, and the actions are substantially alike, so that the relief asked for in the second action can be given in the first, the objection will be sustained, in order to avoid a multiplicity of suits.” The defendant relies upon the case of Allen v. Salley, 179 N. C., 147, but the original record in that case discloses that the pendency of another suit was expressly pleaded by answer and not by demurrer. Affirmed.