Bank of Raleigh v. Summit Coal Co.

*20 Litz, Judge: The plaintiff, by notice of motion in the Circuit Court of Raleigh County, recovered judgment for $39,472.49 against the defendants upon an obligation executed by the defendants to the Raleigh Smokeless Fuel Company, a corporation, on March 21, 1921, and thereafter assigned to the plaintiff. Before trial the defendants moved to quash the notice and, upon the theory that a recovery by them in another action pending in said court, wherein the defendant, Summit Coal Company, was plaintiff and Raleigh Smokeless Fuel Company, a corporation, defendant, could be offset against the plaintiff’s claim, also moved for a stay of this suit pending the trial in the other action. Error is assigned to the action of the trial court, overruling the motion to quash the notice and refusing to stay the proceeding, pending the trial of the suit of Summit Coal Company v. Raleigh Smokeless Fuel Company. Sufficient ground is neither stated by the defendants nor perceived by this Court for the motion to quash the notice. The question involved on the second assignment of error has become moot by our decision, contemporaneous herewith, in the said action of Summit Coal Company v. Raleigh Smokeless Fuel Company, holding, in accordance with the circuit court, that the Summit Coal Company has no right of action against the Raleigh Smokeless Fuel Company. The writ will therefore be dismissed. Dismissed.