St. Dennis v. Thomas, 235 N.C. 391 (1952)

April 9, 1952 · Supreme Court of North Carolina

235 N.C. 391

JOHN ST. DENNIS and Wife, MIGNON M. ST. DENNIS, and ANTHONY REDMOND, Trustee, v. L. W. THOMAS and Wife, EDITH R. THOMAS.

(Filed 9 April, 1952.)

1. Abatement and Revival § 9—

The test of identity of actions for the purpose of a plea in abatement is whether judgment in the prior action would support a plea of res judicata in the second.

2. Same—

An action to recover damages for deceit in the sale of certain real property and to restrain defendants from negotiating, transferring or pledging the note executed for the balance of the purchase price, held not to support a plea in abatement in a subsequent action by the grantors and trustee to recover on the note for the balance of the purchase price and foreclose the deed of trust securing it, since judgment in the prior action would not constitute res judicata in the second.

Appeal by defendants from Bennett, Special Judge, December 1951 Term, BuNCOMBe.

Civil action to recover on a promissory note and for tbe foreclosure of a deed of trust.

On 9 April, 1951, L. W. Tbomas and wife, Editb R. Tbomas, instituted in tbe Superior Court of Buncombe County an action in tort for deceit against Jobn St. Dennis and wife, Mignon M. St. Dennis, alleging tbat said defendants perpetrated a fraud upon them in tbe sale of certain real property. They seek to recover upon tbeir allegations of fraud $22,500 actual damages, $9,000 special damages, and $25,000 punitive damages, and to restrain tbe defendants and tbe First National Bank & Trust Company from negotiating, transferring, bypotbecating, pledging, or otherwise encumbering tbe title to tbe note executed for tbe balance of tbe purchase price of said real estate. Tbe summons and complaint were served upon tbe said Bank on 10 April, 1951. On 23 April, 1951, tbe defendants appeared, petitioned tbe court and obtained an order allowing them through 15 May, 1951, in which to plead and answer tbe rule to show cause. This suit is now pending in Buncombe County.

On 17 July, 1951, John St. Dennis and wife, Mignon M. St. Dennis, and Anthony Redmond, Trustee, instituted this suit in tbe Superior Court of Buncombe County to recover on a promissory note and to secure a foreclosure of tbe deed of trust securing said note. It is stipulated tbat both tbe summons and complaint were properly served and tbe defendants appeared generally and answered. Pleá in abatement was filed as a part of defendants’ answer on tbe ground tbat tbe first suit is now pending in tbe Superior Court of Buncombe County between tbe same parties and involving tbe same subject matter and tbat all tbe rights of tbe plaintiffs in this action could and should be determined in tbe prior action.

From tbe overruling of tbe plea in abatement, tbe defendants appealed, assigning errors.

George A. Shuford for plaintiffs, appellees.

E. L. Loftin and George U. Ward for defendants, appellants.

YaleNtiNe, J.

Tbe trial judge was correct in overruling tbe plea in abatement. Brown v. Polk, 201 N.C. 375, 160 S.E. 357.

Tbe parties in tbe two suits are not identical. Tbe causes of action are different, and tbe results sought are dissimilar. Tbe final judgment in tbe prior action instituted by L. W. Tbomas and wife, Editb R. Tbomas, against John St. Dennis and wife, Mignon M. St. Dennis, would not properly support a plea of res judicata, in tbe present action. Tbis is a crucial test of identity. Hawkins v. Hughes, 87 N.C. 115; 1 C.J. 56; Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452; Thompson v. Herring, 203 N.C. 112, 164 S.E. 619; Oil Co. v. Fertilizer Co., 204 N.C. 362, 168 S.E. 411.

Nothing was said in tbe cases cited in appellants’ brief wbicb militates against our present position.

Tbe judgment of tbe court below must be

Affirmed.