77 S.E. 1101 | N.C. | 1913
This is an appeal from a mandatory injunction. The plaintiffs instituted an action in New York against the defendant 12 November, 1912, and obtained jurisdiction by attachment and garnishment. On 18 November, 1912, the plaintiffs instituted this action against the defendants in this State for the same cause of action, being for the sum of $11,300 alleged to have been paid out in the purchase and sale of 5,000 bales of cotton at the request of the defendant and $750 for commissions thereon, less $9,305 that has been paid, leaving *39 balance due the plaintiffs $2,475. The defendant alleged that the transaction was a gambling transaction, being a dealing in "futures," and void under Revisal, 1689, 1690, and 1691, and asked for a recovery on a counterclaim of $3,000 which the defendant had put up as "margin" and which the plaintiffs had appropriated for their own use; and also a further counterclaim for wrongfully selling the cotton purchased by the plaintiffs for the defendant. The defendant further alleges that the attachment in the New York proceedings was wrongfully sued out, in that the defendant had no property or effects in that State, and that the purpose and intention was to injure and harass the defendant, asking damages herein for such wrongful act. The defendant further alleges that there was no personal service of process in New York in the suit instituted there, and that that action was for the same cause of action upon which this suit is instituted, and both parties being duly in court in this action (plaintiffs by bringing the action and the defendant by personal service), the defendant asks the court, in order to prevent multiplicity of suits and the expense attendant thereon, that a restraining order issue to enjoin and restrain the plaintiffs, their attorneys and agents, from the further prosecution of the said (48) cause in the courts of New York and from any interference thereby with the orders and process in this court, in so far as it embraces the cause of action set out in the complaint herein. The court issued a mandatory injunction in accordance with this prayer, and directed, further, that the plaintiffs and their agents and attorneys dismiss the said action in New York.
There are many cases that hold that the courts of a State where both parties are domiciled may restrain the prosecution of suits between such parties in a foreign jurisdiction. Cole v. Cunningham,
But such power cannot be exerted to enjoin parties who are not domiciled in the jurisdiction of the court, merely on the ground that the party has come into court by bringing an action herein. Probably *40
the only case that has asserted the power of the court to restrain a nonresident plaintiff from bringing an action in another jurisdiction isPickett v. Ferguson,
Among the many cases holding that the court cannot thus enjoin a nonresident is R. R. v. Telegraph Co.,
It will thus be seen that the jurisdiction to issue a restraining order of the nature here sought depends upon the party affected being a resident of this jurisdiction. The mere fact that a nonresident plaintiff brings an action here does not place his person under the control of the court for all purposes, nor for any purpose other than affecting the prosecution of his action. The court may prescribe the terms upon which he may be allowed to prosecute his action here, but that is the limit of its authority. This is fully discussed and so held in Bank v. R. R.,
The doctrine to be derived from the authorities is thus stated inGriffith v. Langsdale,
If the parties were both domiciled here, such an injunction as this would not lie, but the remedy is by a demurrer, "That there is another action pending between the same parties for the same cause" (Revisal, 474, 3), and in such case even, it must appear that the other action is pending in this State. Ridley v. R. R.,
The mandatory injunction was improvidently granted.
Reversed.