Brown v. Polk, 201 N.C. 375 (1931)

Sept. 30, 1931 · Supreme Court of North Carolina

201 N.C. 375

J. F. BROWN et al., v. W. T. POLK et al.

(Filed 30 September, 1931.)

Abatement and Revival B b — Held: the two actions in question were not the same and plea in abatement in the second action was bad.

Where notes secured by a deed of trust are given as collateral security for another note, and the payee of the note secured by the collateral notes institutes action thereon against the maker and at the same time has the trustee in the deed of trust advertise the land securing the collateral notes, Held: an action instituted in another county, by the maker of the collateral notes and others, to restrain the sale of the land and to have the deed of trust canceled upon allegations of payment of the collateral notes is not the same as the action brought solely on the note secured by the collateral notes, and the defendant’s plea in abatement in the second action is bad, since a final judgment in the first action would not support a plea of res judicata in the second.

Appeal by defendant, Tbe Cooper Company, from Granmer, J., at May Term, 1931, of WakkeN.

Civil action to restrain tbe foreclosure of deed of trust and to bave tbe same canceled of record.

On 26 February, 1930, Tbe Cooper Company, Inc., instituted an action in Yance County against J. F. Brown to recover on a promissory note of $2,295.87, subject to a credit payment of $427.21. Tbe plaintiff asked for judgment on tbe note, and no more.

It seems tbat Tbe Cooper Company bolds as collateral security to its note, three notes of $551.17 eacb, given by J. F. Brown to M. P. Burwell, B. B. Boyd and W. B. Boyd for tbe purchase price of land situate in Warren County and secured by deed of trust thereon. No mention is made of this collateral in tbe suit instituted in Y anee County. But at tbe same time of tbe institution of its suit in Yance County, Tbe Cooper Company caused tbe administrators of tbe deceased trustee to advertise under tbe power of sale in order to realize on its collateral as aforesaid.

Plaintiffs bring this action in "Warren County, tbe county of their residence, to enjoin tbe foreclosure of said deed of trust, alleging payment of tbe notes, and demanding tbat tbe deed of trust be surrendered up and canceled of record. Summons was issued herein 10 March, 1930.

Plea in abatement is filed by Tbe Cooper Company on tbe ground tbat tbe same subject-matter is involved in its action instituted in Yance County 26 February, 1930.

From the overruling of its plea in abatement, Tbe Cooper Company appeals, assigning errors.

Yarborough & Yarborough for plaintiffs.

T. P. Gholson, A. W. Gholson, Jr., Julius Banzet and B. S. McGoin for defendant, Cooper Company.

Stacy, C. J.,

after stating the case: The plea in abatement was properly overruled. Hawkins v. Hughes, 87 N. C., 115. The causes of action are different in the two suits. A final judgment in the action brought in Yanee County would not support a plea of res judicata in the subsequent proceeding instituted in "Warren County. This is one of the tests of identity. Bank v. Broadhurst, 197 N. C., 365, 148 S. E., 452. In short, the two suits are unlike: the causes of action are not the same; and the results sought are dissimilar. 1 C. J., 56. This renders the plea in abatement bad.

Nothing was said in Construction Co. v. Ice Co., 190 N. C., 580, 130 S. E., 165, or Allen v. Salley, 179 N. C., 147, 101 S. E., 545, which militates against our present position.

Affirmed.