Annotate this Case

185 S.E.2d 727 (1972)

13 N.C. App. 412

Irving LEHRER v. EDGECOMBE MANUFACTURING COMPANY, Inc., and Dobie Originals, Inc.

No. 717SC646.

Court of Appeals of North Carolina.

January 12, 1972.

*728 Biggs, Meadows & Batts by Charles B. Winberry, Jr., Rocky Mount, for plaintiff appellant.

*729 Bridgers & Horton by T. Perry Jenkins, Tarboro, for defendant appellees.

MALLARD, Chief Judge.

Neither of the motions filed by Dobie contained the rule number under which the movant was proceeding. The trial judge should have declined to rule upon the motions because they did not comply with Rule 6 of the "General Rules of Practice for the Superior and District Courts" as contained in Volume 276, page 735, of the North Carolina Reports. However, since plaintiff has not argued this failure, we consider the appeal on its merits.

The appeal presents this question for decision: Is the pendency of a prior action by the plaintiff against the defendant Dobie in a United States District Court in New York, assuming that the subject matter, issues involved, and relief demanded are substantially the same as in this action, sufficient grounds for a dismissal of this action? The answer is: No.

Prior to the adoption of the new Rules of Civil Procedure as contained in Chapter 1A of the General Statutes, the proper way to raise a plea in abatement was by answer. Under G.S. § 1A-1, Rule 7(c), "pleas" are specifically abolished; but under Rule 12(b), every defense, including a defense in the nature of the old plea in abatement, may be raised by responsive pleadingin this case by answer. Both the plaintiff and the defendants in the case before us agree that the dismissal presents essentially the same questions as did the old plea of abatement.

The rule is stated as follows:

"The pendency of a prior action between the same parties for the same cause of action in a state court of competent jurisdiction works an abatement of a subsequent action either in the same court or in another court of this state having jurisdiction. The prior action must be pending in a court of this state, and the pendency of an action in a court of another state will not support a plea in abatement. * * *" 1 Strong, N.C. Index 2d, Abatement and Revival, § 3.

It is said in In re Skipper, 261 N.C. 592, 135 S.E.2d 671 (1964):

"A plea in abatement seeking dismissal of an action, because another action is pending between the same parties on the same right of action, should be sustained when, and only when, the actions are pending in different courts of the same sovereign. If the actions are brought in courts of different states, the plea should be overruled." (Emphasis added.)

In Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964), it is said:

"Where another action pending between the same parties for the same cause is made the basis of a plea in abatement, the former action must be pending (a) in a court of competent jurisdiction and (b) within this State, in order to bar the second action. McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860; 1 McIntosh, North Carolina Practice and Procedure, § 1236(4) (1956 ed.)." (Emphasis original.)

In Cushing, the plea in abatement failed for both of the reasons indicated above. In both Cushing and In re Skipper, the prior actions were pending in the courts in another state.

In Kesterson v. R. R., 146 N.C. 276, 59 S.E. 871 (1907), however, the prior action was pending in a federal court, and the rule was explained as follows:

"The pendency of a suit, in personam, in a state court, which has not proceeded to judgment, cannot be successfully pleaded in abatement of a suit between the same parties for the same cause of action in a federal court. *730 So, too, and for like reasons, an action of a similar nature which is pending, but has not proceeded to judgment, in a federal court, cannot be pleaded in abatement of a like suit in a state court. * * * Had the action in the Circuit Court of the United States been prosecuted to judgment, it would have, upon proper plea, barred further prosecution in the state courts. * * *"

Defendants herein would distinguish Kesterson on the grounds that the action pending in the Federal Circuit Court in that case had been nonsuited prior to the filing of the complaint in the state action, but the general principles stated in Kesterson and reiterated in every other North Carolina case found are to the effect that a similar action pending in the courts of any other jurisdiction will not abate an action between the same parties in the North Carolina courts. Apparently recognizing that the North Carolina rule is against their position, the defendant appellees in this case ask that the Court of Appeals "overrule" Cushing and Skipper. We do not have the authority or inclination to do so. Therefore, we hold that the trial judge erred in granting Dobie's motion to dismiss on the grounds of a prior pending action in another jurisdiction.

In Anno., 19 A.L.R.2d 301, it is noted that it is "uniformly held" that a prior action pending outside the jurisdiction is not grounds for the abatement of an action begun in the courts of the state in question, but that this does not preclude the court in the second forum from staying or continuing the progress of the second action pending determination of the first. Such a stay or continuance is, however, discretionary and not a matter of right.

In the case before us, the defendant Dobie asserted its defense of the prior pending action in the answer, as well as in a separate written motion filed in the case. The separate motion may be treated as surplusage because the defense of the prior pending action contained in the answer should be considered first, as preliminary to a hearing on the merits.

For the reasons hereinabove stated, the order dismissing this action as to Dobie is reversed.


HEDRICK and GRAHAM, JJ., concur.