Baushar v. . Willis

Devin, J. The appealing defendant excepted to the denial of bis plea in abatement on the ground that there was another action pending between the same parties for the same cause. This case was before this Court at the Fall Term, 1934, upon the defendant’s appeal from an order of the Superior Court continuing the restraining order to the bearing, and is reported in 207 N. C., 511. There it is said: “There is no finding that the prior action is for the same cause, and that they are substantially alike. Indeed, the two are apparently dissimilar.” Upon the trial in the court below Judge Small made certain findings and adjudged that the defendant’s plea of a former *55 action pending between the same parties in interest over the same subject matter be denied. The findings of the judge upon the record and evidence before him and his conclusions will not be disturbed. Buchanan v. Clark, 164 N. C., 56; Assurance Society v. Lazarus, 207 N. C., 63. It appears that in the other action Albert Jowdy was plaintiff and Caroline H. Willis, administratrix, and Lizzie Rabid were defendants. Bowling v. Bank, 209 N. C., 463; Bank v. Broadhurst, 197 N. C., 365. The defendant’s exception to the form of issues submitted cannot be sustained. These issues seem to present the determinative questions litigated so that they could be understood by the jury and all pertinent evidence presented. Potato Co. v. Jeanette, 174 N. C., 236. Nor is there any reversible error in the portions .of the charge to which exceptions were taken. There was sufficient evidence to go to the jury on the allegation of fraud and intent to cheat and overreach the plaintiffs to their injury, and there is no sufficient reason to disturb their findings. The judgment was properly entered on the verdict adjusting the amounts found by the jury on the several issues. Nor was it error to ascertain the entire amount of rents due in connection with the defendant’s claim for improvements and taxes paid. King v. Bynum, 137 N. C., 491. No error.