Cook v. . Cook

Hoke, J.,

after stating tbe case: Under our present procedure, a defendant is allowed to demur, when it appears on tbe face of tbe complaint that there is another action pending between tbe same parties for tbe same cause (Rev. 1905, sec. 415, subsec. 3), and where this does not appear from tbe complaint tbe objection may be taken by answer (Revisal, 417); and it has been held with us that an objection of this character may be joined with plea in bar or an answer on tbe merits. Blackwell v. Dibrell, 103 N. C., 270, citing on this position Pomeroy’s Remedies, sec. 121. Tbe judge below, therefore, bad no right to-require defendant to withdraw bis answer on tbe merits as a condition for having bis plea in abatement considered and passed upon. We bold, however, that tbe verdict and judgment should not be disturbed on this account, being of opinion that tbe pendency of defendant’s suit in Alamance County in which tbe husband is seeking to obtain a divorce a vinculo, is not necessarily a good plea against tbe present prosecution of plaintiff’s suit for divorce from bed and board. As a general rule, this right to plead tbe pendency of another action between tbe same ¡parties, before judgment bad, is regarded to a large extent as a rule of convenience, resting on the principle embodied in tbe maxim, “Nemo debet bis vexare ,” etc. Tbe defect is one that can be waived, and it may also be cured by dismissing tbe prior action at any time before tbe bearing (1 Cyc., p. 25; Grubbs v. Ferguson, 136 N. C., 60), and tbe plea presenting it is usually confined to suits in wbicb tbe same litigant is plaintiff, or is at least an actor seeking tbe same relief. Long v. Goal and Iron Co., 233 Mo., 714; Rodney v. Gibbs, 184 Mo., 1, 10; Craig v. Dougherty, 45 Mo., 294; Mattel v. Conant, 156 Mass., 418; Washburn & Co. v. Scott Co., 22 Fed., 711; Wadsworth v. Johnston, 41 Cal., 61; New England Screw Co. v. Blevin, Blackford’s C. C., p. 240.

In tbe case before us tbe present plaintiff is not tbe plaintiff in tbe action pending in Alamance County, nor is sbe an actor in tbat suit seeking affirmative relief. Sbe asks for no judgment there and bas not filed tbe affidavit required by Qur law in divorce proceedings and wbicb we bave often beld is jurisdictional in its nature. Johnson v. Johnson, 142 N. C., 462; Hopkins v. Hopkins, 132 N. C., 22.

In divorce proceedings a defendant sued is allowed, witb us, to ask for and obtain a divorce on bis own account, but be can only do so by cross-action or petition, accompanied by tbis jurisdictional affidavit and coming witbin tbe definition of tbe general term counterclaim, as it is understood and used in Tbe Code. Smith v. French, 141 N. C., 7, citing Green on Code Pleadings and Practice, sec. 815. It is well recognized bere tbat a party sued is not required as a rule to set up a counterclaim existent in bis favor, but is allowed to assert tbe same in a different or a subsequent action. Shakespeare v. Land Co., 144 N. C., 521; Mauney v. Hamilton, 132 N. C., 303; Manufacturing Co. v. McElwee, 94 N. C.,425. It is urged tbat while tbis rule may bold in ordinary actions, it should not obtain in divorce proceedings, because tbe status of tbe parties, is then necessarily involved. It would seem, however, to be especially insistent in such proceedings where a party may not desire to presently seek affirmative relief, in tbe hope tbat a different course would more likely lead to a reconciliation; and assuredly we think tbe reluctance or failure to take- such course from such a motive should not be beld to defeat or prejudice tbe right of a defendant to bring bis canse before tbe court at another time. This plea, upon which defendant now relies to defeat plaintiff’s recovery, is referred to in 1st Pl. and Pr., p. 750, as available when there is a former suit pending in the same -jurisdiction between the same parties for the same cause of action and for the same relief. Not only is present plaintiff not an actor in the suit in Alamance County, but the relief sought by her is not the same as that involved in the other issue, nor is it dependent altogether on the same state of facts. And authority seems to favor the position that the pendency of an action seeking one kind of divorce does not necessarily forbid the maintenance of a suit to secure a divorce of a different kind. Simpson v. Simpson (41 Pac., 804), Cal., Sept., 1895; Stevens v. Stevens, 42 Mass., 279; Monroy v. Monroy, 1 Edw. Chan., p. 382; Thornton v. Thornton, 11 Pro. Div., 1886, p. 176; 2 Bishop on Marriage and Divorce, sec. 565; 1 Cyc., p. 31; 9 Amer. and Eng. Ency. (2d), p. 840. In this last citation the author says: “It is not a bar to a suit for separation that another suit is pending for an absolute divorce, and the courts will under some circumstances refuse to stay the former proceedings until the latter is determined.” Pursuing this statement, if it should be made to appear that a prior suit was pending between the same parties which embraced the same issue and involved to a large extent the same state of facts, a court would and should, if right and justice would be thereby best .promoted, stay the proceedings until the results off the former suit could be attained ; but as we have endeavored to show, there is nothing in this ease that requires such a course as a matter of law, and nothing appears of record to justify it as a matter of discretion.

After a full and fair trial, in which defendant, having answered, was present in court, the plaintiff has established that she was abandoned by defendant wrongfully and without just cause, and we find nothing in the law or the facts of the case to justify the Court in depriving the plaintiff of her verdict and the rights which flow from it under the law. The judgment in plaintiff’s favor is therefore affirmed.

No error.