Commissioner of Banks Ex Rel. United Bank and Trust Co. v. Gavin

163 S.E. 926 | N.C. | 1932

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.

From 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. 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.