Commissioner of Banks ex rel. United Bank and Trust Co. v. Gavin, 202 N.C. 843 (1932)

April 20, 1932 · Supreme Court of North Carolina
202 N.C. 843
COMMISSIONER OF BANKS, on Relation of the UNITED BANK AND TRUST COMPANY, v. E. L. GAVIN and His Wife, MAMIE F. GAVIN

COMMISSIONER OF BANKS, on Relation of the UNITED BANK AND TRUST COMPANY, v. E. L. GAVIN and His Wife, MAMIE F. GAVIN.

(Filed 20 April, 1932.)

Abatement and Revival B b — Where judgment in pending action would not support plea of res judicata in second action plea in abatement is bad.

Where a judgment in a pending action would not support a plea of res judicata in a second action, and the two actions are not the same and the results sought are dissimilar, a plea in abatement in the second action on the ground that another action between the parties was then pending is properly overruled.

Appeal by defendants from Oglesby, J., at January Term, 1932, of Gtjileokd.

Affirmed.

This action was heard on the plea in abatement filed by the defendants on the ground that at the date of the commencement of the action another action between the same parties on the same cause of action was pending in the Superior Court of Lee County.

*844From judgment overruling the plea in abatement, and allowing defendants time to file answer or other pleadings, as they may be advised, defendants appealed to the Supreme Court.

Robert Moseley and R. R. King, Jr., for plaintiff.

D. B. Teague, 8. Ray Byerly and K. R. Hoyle for defendants.

. _ Pee CueiaM.

The judgment in this action is affirmed on the authority of Brown v. Polk, 201 N. C., 375, 160 S. E., 357, and decisions of this Court cited in the opinion in that case. A judgment in the action pending in the Superior Court of Lee County at the date of the commencement of this action would not support a plea of res judicata in this action. The causes of action alleged in the complaints in the two actions are not the same; and the results sought are dissimilar. This renders the plea in abatement bad.

The Commissioner of Banks by name should be made a party to this action. This may be done by amendment. Commissioner of Banks v. Harvey, ante, 380.

Affirmed.