State Ex Rel. Cooper v. Crisco

AdaMs, J. The writ of quo warranto and proceedings by information in the nature of quo warranto have been abolished and the remedies available at common law under these forms may now be obtained by a .civil action; but when a private citizen desires to bring such action in the name of the State he must apply to the Attorney-General for leave and tender satisfactory security to indemnify the State against all costs and expenses which may accrue in consequence of the action. C. S., 869, 871. After obtaining leave from the Attorney-General the plaintiff instituted his first action against the defendant on 30 December, 1930, and at the term of the Superior Court which convened in February he submitted to a judgment of voluntary nonsuit. He afterwards issued another summons and commenced a second action against the defendant without applying for or obtaining the Attorney-General’s permission to sue in the name of the State. In response to the defendant’s proposition that the second action could not legally be prosecuted under these circumstances the plaintiff contends that the leave granted him on IS December, 1930, applied to the second as well as to the first action. The decision cited in support of this position is Quelch v. Futch, 174 N. C., 395. In that case the action was first instituted by Thomas H. Williams, who suffered a nonsuit, and within twelve months J. P. Quelch began another action for the recovery of the land which was in controversy in the former suit. The court held that Quelch could not avail himself of C. S., 415 because he was not the plaintiff in the other action and because it did not appear that Williams was dead and that Quelch was his heir or representative; and further that Quelch was not within the equity and spirit of the statute which is based upon substantial identity of parties, title, and causes of action. The statement that the two actions should be treated as one and that the second was a continuance of the writ in the first has reference, we apprehend, to the identity of the causes of action, because the only question before the court was whether the plaintiff had brought himself within the pro *742 visions of O. S., 415 (Revisal, 370), tbe Court saying that tbe two suits must be for substantially tbe same causes. Nonsuit is tbe name of a judgment given against tbe plaintiff wben be is unable to prove a ease, or wben be refuses or neglects to proceed to tbe trial of a cause at issue and leaves tbis issue undetermined. It is provided by statute that if an action is commenced witbin tbe time prescribed tlierefor and tbe plaintiff is nonsuited be may commence a new action witbin one year after sucb nonsuit if tbe costs in tbe original action liave been paid by tbe plaintiff before tbe commencement of the new suit, unless the original suit was brought in forma pauperis. C. S., 415. Tbe words “new action,” “new suit,” and “original suit” indicate a difference in tbe two actions tbougb tbe causes may be identical. Tbe distinction is observed in decisions referring to tbe causes of action in tbe respective suits, to a restatement of tbe same cause in tlie latter action, and to “another action,” a “second action,” tbe “former action” and a “subsequent action.” Webb v. Hicks, 125 N. C., 201; Woodcock v. Bostic, 128 N. C., 243; Meekins v. R. R., 131 N. C., 1; Prevatt v. Harrelson, 132 N. C., 250; Evans v. Alridge, 133 N. C., 378; Hood v. Telegraph Co., 135 N. C., 622; Tussey v. Owen, 147 N. C., 335; Lumber Co. v. Harrison, 148 N. C., 333; Starling v. Cotton Mills, 168 N. C., 229; Hampton v. Spinning Co., 198 N. C., 235. Tbe prosecution bond in tbe first action was given on condition that it should be void if tbe plaintiff paid tbe defendant all costs which tbe latter recovered from him in that action; and according to tbe record the bond filed with the Attorney-General was to indemnify tbe State “in said action.” The cause of action in the first suit may he identical with the cause in tbe second, but it does not follow that tbe prosecution bond, tbe bond of indemnity, or tbe leave given by tbe Attorney-General on 15 December, 1930, can avail tbe defendant in tbe action last instituted. Our opinion is that they cannot. Tbe next question is whether tbe plaintiff can maintain tbe “new action.” When be began it be bad not obtained tbe leave of tbe Attorney-General to proceed in tbe name of tbe State. Tbe summons was issued 11 February; tbe final judgment was rendered on 18 June; leave to sue was granted on 17 June. Did tbe plaintiff neglect to comply with the law? Insisting that be can maintain the action notwithstanding bis delay in applying to tbe Attorney-General, tbe plaintiff relies in part on Russell v. Saunders, 48 N. C., 432, and similar cases, in which it is said that tbe giving of a prosecution bond is not a condition precedent to tbe bringing of a suit and hence tbe bond may be filed after tbe writ is re *743 turned. Suck bond is given for tbe benefit of the adverse party wbo may waive its execution, McMillan v. Baker, 92 N. C., 111; but as pointed out in Saunders v. Gatling, 81 N. C., 298, an action in tbe nature of quo luarranto is not merely an action to redress tbe grievance of a private person wbo claims a right to an office; it is one in wbicb tbe public bas an interest wbicb is paramount to tbat of private rights. Tbat tbe leave of tbe Attorney-General is necessary is not questioned. C. S., 871; Mining Co. v. Lumber Co., 173 N. C., 593. Tbe case of Shennonhouse v. Withers, 121 N. C., 376, suggests an analogy between a suit brought without obtaining tbe required leave and one brought without giving a prosecution bond. Referring to tbat case in Midgett v. Gray, 158 N. C., 133, Hoke, J., remarked tbat it must always be made to appear, pending tbe proceedings, tbat tbe leave of tbe Attorney-General bas been given to prosecute tbe action. In a subsequent report of tbe same case it was said tbat in tbe absence of proof of permission given anterior to issuing tbe summons tbe action should be dismissed. 159 N. C., 443. Tbe case last cited is tbe only one wbicb designates tbe specific time when leave should be obtained — i. e., before tbe institution of tbe action; but we are advised of no decision in wbicb this Court bas approved tbe practice on wbicb tbe plaintiff now insists. In Shennonhouse v. Withers, supra, consent was obtained before tbe trial of tbe action, and in Midgett v. Gray, supra, permission to institute tbe action wbicb is referred to as a condition precedent, “was given in writing as required by law,” presumably before tbe commencement of tbe action. In North Carolina Practice and Procedure, see. 970, it is said: “Tbe fact tbat leave bad been obtained should be stated in tbe complaint.” We deem it best to adhere to tbe decision in Midgett's case as reported in 159 N. C., 443, and to bold tbat tbe consent of tbe Attorney-General is a condition precedent to tbe institution of tbe action. Tbe plaintiff obtained leave more than four months after tbe institution of tbe action and on tbe day preceding tbe rendition of tbe final judgment. His delay was fatal. Tbe appellant’s counsel referred to tbe irregularity of tbe final judgment at Chambers dismissing tbe action but stated on tbe argument tbat if tbe merits of tbe case were held to be against tbe plaintiff they would not urge tbe irregularity. For this reason tbe question is not considered. Tbe judgment is Affirmed.