Taylor v. Schaub , 225 N.C. 134 ( 1945 )

Schenck, J.

The denial of his Honor of the defendant Schaub’s motion to abate the plaintiff Taylor’s action and to dissolve the restraining order theretofore issued and the making by the defendant Schaub, the appellant, of such ruling on the part of the court the bases of excep-tive assignments of error raise the determinative question posed on this appeal, namely: "Was there another action pending in the Superior Court of "Wake County between the same parties and involving the same causes of action as are involved in the instant case pending in the Superior Court of Duplin County? If the answer is in the negative his Honor’s ruling was correct; if, on the other hand, the answer is in the affirmative his Honor’s ruling was in error.

In the instant case, pending in the Superior Court of Duplin County, the plaintiff Taylor seeks to have the defendant American Trust Company and/or Apex Transportation, Inc., restrained from turning over to defendant Schaub any funds in payment of the operating rights which Schaub is alleged to have contracted to lease, with option to purchase, to Apex Transportation, Inc., and to restrain Schaub from collecting any of the funds held in escrow by the American Trust Company or any funds from the Apex Transportation, Inc., on the purchase price of said operating rights; and seeks further to have judgment restoring to the plaintiff Taylor said operating rights and to recover all rents that accumulate on said operating rights, or in the event the plaintiff cannot recover said operating rights that plaintiff recover $40,000.00 damages of the defendant Schaub.

The instant ease pending in Duplin County is to restrain some of the defendants from paying ovér certain funds arising from rental and sale of the operating rights, and to restrain the defendant Schaub from collecting any such funds; the object of such restraining older being to prevent the consummation of the contract of purchase and sale of the operating rights alleged to have been wrongfully entered into by defendant Schaub with the defendant Apex Transportation, Inc., in derogation of the rights of the plaintiff Taylor. In other 'words, the principal purpose of the instant case in Duplin County is to restrain any action which would render the plaintiff Taylor’s suit to recover back the operating rights ineffective. Whereas in the former case pending in Wake County, the defendant therein, being the same person as the plaintiff in the instant case, the principal purpose of the defendant Taylor, as evidence by his admissions in his answer and averments in his further defense, was to obtain an accounting between him, Taylor, and the plaintiff Schaub of the matters and things growing out of the contract between them of purchase and sale of the operating rights.

The relief sought by Taylor in the former case being for an accounting between defendant Taylor and plaintiff Schaub and in the instant case being for a restraining order against defendant Schaub and others in favor of plaintiff Taylor, any judgment rendered in the former case would not afford the relief sought in the latter case; nor would a judgment in the former case be res judicata in the latter case.

It would therefore seem that a negative answer to the question posed is indicated and that his Honor was correct in disallowing the motion of the defendant Schaub to abate the latter action. “In accordance with the rule that the relief sought in both actions must be the same in all material respects, a test frequently applied in determining the identity of the causes of action, and which is applicable in equity, as well as law, is, whether the relief sought in the second action, to which abatement is pleaded, is fully covered by, and obtainable under, the relief asked in the prior action, which is pleaded in abatement, that is, is a judgment based on the cause of action alleged in the second action legally possible in the first action, which was brought for the purpose of obtaining such judgment. Under this test a second action should be abated, if the party who institutes it is able to obtain in the prior pending action all the relief which he asks in the second, or to which he is entitled; or, as otherwise expressed, a second action should be abated where every material right or question asserted therein could be adjudicated in the prior pending action, or where the whole purpose of the second action is attainable in the first, or where the prior action is effectual and the party can obtain his remedy therein as completely as in the second action.” 1 C. J. S., Abatement and Revival, par. 43; 1 Am. Jur., Abatement and Revival, pars. 28 et seq.

“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.” Syllabus of Comr. of Banks v. Gavin, 202 N. C., 843, 163 S. E., 682.

“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 Yance 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.” Brown v. Polk, 201 N. C., 375, 160 S. E., 357.

The plaintiff in the instant case, Taylor, is not estopped to maintain the action in Duplin County, for the reason that no counterclaim was pleaded in the former action in Wake County by the defendant Schaub, and this action in Duplin County is against the defendant Schaub for transferring the operating rights of the plaintiff Taylor, without his knowledge and consent, and in fraud of his rights to operate his trucks, as he had theretofore done, and for return of said rights, or in the event he could not recover said rights, for damages for the loss thereof; and against the Apex Transportation, Inc.,- to whom such rights had been transferred for any amount due for the purchase of said rights and any rentals accruing thereon; and against the American Trust Company to follow the funds so accruing; the last two defendants were not made parties to the first action, which was brought for an accounting, and no judgment in that action would be binding upon them.

The present status is the action in Wake County of Schaub v. Taylor for an accounting, and the action in Duplin County of Taylor against Schaub and two other defendants, to which the defendant Schaub has filed plea in abatement and motion to dismiss, and his codefendant, Apex Transportation, Inc., has filed answer to the merits. Under these circumstances his Honor committed no error in denying the plea in abatement and overruling the motion to dismiss for the reason that another case was pending between the same parties for the same cause of action and his order should be affirmed, and it is so ordered.

Affirmed.