Frank H. Conner Co. v. Quenby Corp., 272 N.C. 214 (1967)

Dec. 13, 1967 · Supreme Court of North Carolina

272 N.C. 214

FRANK H. CONNER COMPANY v. QUENBY CORP., Owner, and MONROE MECHANICAL CONTRACTORS, INC.; ARROW, INC.; WINECOFF ELECTRIC CO., INC.; W. J. SULLIVAN; and INTERSTATE ROOFING CO., INC., Subcontractors.

(Filed 13 December, 1967)

Abatement and Revival, § 8—

A subsequent action arising out of the identical contract involved in a prior suit and involving the rights of the same parties under that contract, is properly dismissed upon the original defendant’s plea in abatement.

Appeal by plaintiff from McConnell, J., in Chambers, 30 August 1967.

This case substantially involves the dispute between the defendant Quenby Corp., who contracted with the plaintiff Conner Co. to construct the buildings for a shopping center in Albemarle, North Carolina. It was instituted by the plaintiff on 27 February 1967 to recover of Quenby the sum of $157,080.46, which it alleged was due it and the subcontractors on the project who were also made defendants with Conner Co.

When this action was instituted, there was already pending an action in which Quenby, the owner, had sought to recover of Conner, the contractor, in connection with the same cause of action alleged in this litigation. There was but one entire contract between Quenby and Conner, and it is the basis of both suits.

Upon the defendant’s plea in abatement because of the already pending litigation between the same parties and involving the same subject matter, the Court sustained the plea and ordered that the cause in its entirety be dismissed.

The plaintiff appealed.

Gardner, Connor & Lee by David M. Connor, Attorneys for 'plaintiff appellant, Frank H. Conner Company.

Coble, Tanner & Grigg by David L. Grigg, Attorneys for defendant appellee, Quenby Corp.

Brown, Brown & Brown by B. L. Brown, Jr., Attorneys for defendant appellees, Winecoff Electric Co., Inc., and W. J. Sullivan.

Grier, Parker, Poe & Thompson by William E. Poe and Gaston H. Gage, Attorneys for defendant appellee, Interstate Roofing Co., Inc.

Pee Cueiam.

The Court was correct in its ruling. In Sales Co. v. Seymour, 255 N.C. 714, 122 S.E. 2d 605, this Court said:

“Decisions of this Court uniformly hold that 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 the State having jurisdiction.”

We have this day decided the case of Quenby v. Conner, ante, p. 208. The facts alleged in that case are substantially similar to the ones involved herein. In dismissing this action there was

No error.