Lead Opinion
after stating tbe case: Under our present procedure, a defendant is allowed to demur, when it appears on tbe face of tbe complaint that there is another action pending between tbe same parties for tbe same cause (Rev. 1905, sec. 415, subsec. 3), and where this does not appear from tbe complaint tbe objection may be taken by answer (Revisal, 417); and it has been held with us that an objection of this character may be joined with plea in bar or an answer on tbe merits. Blackwell v. Dibrell, 103 N. C., 270, citing on this position Pomeroy’s Remedies, sec. 121. Tbe judge below, therefore, bad no right to-require defendant to withdraw bis answer on tbe merits as a condition for having bis plea in abatement considered and passed upon. We bold, however, that tbe verdict and judgment should not be disturbed on this account, being of opinion that tbe pendency of defendant’s suit in Alamance County in which tbe husband is seeking to obtain a divorce a vinculo, is not necessarily a good plea against tbe present prosecution of plaintiff’s suit for divorce from bed and board. As a general rule, this right to plead tbe pendency of another action between tbe same ¡parties, before judgment bad, is regarded to a large extent as a rule of convenience, resting on the principle embodied in tbe
In tbe case before us tbe present plaintiff is not tbe plaintiff in tbe action pending in Alamance County, nor is sbe an actor in tbat suit seeking affirmative relief. Sbe asks for no judgment there and bas not filed tbe affidavit required by Qur law in divorce proceedings and wbicb we bave often beld is jurisdictional in its nature. Johnson v. Johnson, 142 N. C., 462; Hopkins v. Hopkins, 132 N. C., 22.
In divorce proceedings a defendant sued is allowed, witb us, to ask for and obtain a divorce on bis own account, but be can only do so by cross-action or petition, accompanied by tbis jurisdictional affidavit and coming witbin tbe definition of tbe general term counterclaim, as it is understood and used in Tbe Code. Smith v. French, 141 N. C., 7, citing Green on Code Pleadings and Practice, sec. 815. It is well recognized bere tbat a party sued is not required as a rule to set up a counterclaim existent in bis favor, but is allowed to assert tbe same in a different or a subsequent action. Shakespeare v. Land Co., 144 N. C., 521; Mauney v. Hamilton, 132 N. C., 303; Manufacturing Co. v. McElwee, 94 N. C.,425. It is urged tbat while tbis rule may bold in ordinary actions, it should not obtain in divorce proceedings, because tbe status of tbe parties, is then necessarily involved. It would seem, however, to be especially insistent in such proceedings where a party may not desire to presently seek affirmative relief, in tbe hope tbat a different course would more likely lead to a reconciliation; and assuredly we think tbe reluctance or failure to take- such course from such a motive should not be beld to defeat or prejudice tbe right of a defend
After a full and fair trial, in which defendant, having answered, was present in court, the plaintiff has established that she was abandoned by defendant wrongfully and without just cause, and we find nothing in the law or the facts of the case to justify the Court in depriving the plaintiff of her verdict and the rights which flow from it under the law. The judgment in plaintiff’s favor is therefore affirmed.
No error.
Dissenting Opinion
dissenting: Tbe defendant brought an action against bis wife, tbe plaintiff herein, for an absolute divorce in Alamance County, which was the place of his residence, at that date, September, 1910. The present plaintiff, the defendant in that action, appeared and filed an answer. Subsequently she instituted this action-in Wake, in August, 1911. The defendant herein moved to abate this action by reason of, the pendency of his prior action which had been brought in Alamance. This motion should have been granted.
In Smith v. Morehead, 59 N. C., 360, the Court held that the domicile of the husband was the domicile of the wife, and that proceedings in divorce instituted by the wife against the husband must be brought in the county where the husband resided.
But independently of th'at, an action for divorce is sui generis, and is to determine the status, of the parties. Hence, there can be nothing in the nature of a counterclaim. In Bidwell v. Bidwell, 139 N. C., 409, Holce, J., says: “Actions for divorce deal with the status of the parties,” and held that, there having been a decree of divorce between the parties, a subsequent action would be barred, though it might set up matters which would have affected the former decree, if pleaded in time.
In the present case, even if this action had been properly brought by the wife in Wake, the judgment decreeing her a divorce from bed and board was a determination that such was the legal status of the parties at the date of that judgment. Hence, in the further prosecution of plaintiff's suit in Ala-mance, which he had a right to bring in that county, and which he did bring therein nearly a year prior to the institution of the present suit by his wife in Wake, he will be estopped by the judgment in this case from further prosecuting his action. He, can only bring a new action, and only as to causes arising subsequent to the date of the judgment in this. He is estopped by the judgment in this case. As the husband instituted his action in Alamance prior to the beginning of this action, he had a right to prosecute it to judgment, and the action in this case in Wake should have been dismissed, for the wife could have had her full remedy by a defense to the action in Alamance which was already pending for the purpose of determining the status of the parties.
The husband having brought his prior action in Alamance, the wife should have tried out her grounds of defense or her claims for relief in that action.
The test of a counterclaim is that its decision is not necessarily involved in the pending action, and the claimant can bring his counterclaim on it even after judgment. If the plaintiff in the Alamance case, which was first brought, had obtained judgment of absolute divorce, the defendant in that case could not have brought her action for divorce from bed and board. Bidwell v. Bidwell, 339 N. C., 409. It follows that she could not bring such suit pending the Alamance action. Her demand is not a counterclaim, but a recrimination, and would be barred by a decision granting the demand in the plaintiff’s action against her, for it is a matter necessarily involved in the decree in the action against her which would determine her status. Tyler v. Capeheart, 125 N. C., 64.
Lead Opinion
CLARK, C. J., and WALKER, J., dissenting. *Page 39 Civil action for divorce a mesna, etc. The present action was instituted 26 August, 1911, and summons therein was personally served on defendant 1 September, 1911. Plaintiff filed her complaint to September Term, 1911, for divorce from bed and board on account of abandonment, "unlawfully and without just cause," the complaint being accompanied by the formal affidavit required by the statute. Defendant thereupon answered, denying the alleged abandonment, and answered further, in bar of plaintiff's right to maintain her action, that the defendant had theretofore commenced an action for divorce a vinculo for cause specified in subsec. 5, Revisal sec. 1561, that is, because the parties had lived separate and apart for ten successive years, had resided in the State for that period, and there were no children born of the marriage, etc.
It appeared that defendant's action returnable to Superior Court of Alamance County had been commenced 24 September, 1910, summons personally served on plaintiff 1 October, 1910, complaint filed November Term, 1910, and defendant therein, that is, the present plaintiff, had appeared in that suit and made formal denial of complaint, and as a part of such denial had averred a wrongful abandonment by her husband in August, 1900, and prayed judgment that plaintiff's suit be denied him. This answer was verified in ordinary form of answers in civil actions, but not in the form required in actions for divorce. When the present case was called for trial in Wake Superior Court, it was admitted by plaintiff that the action by defendant in Alamance was still pending, and before the jury was impaneled defendant moved to "abate the action and dismiss the same" by reason of the pending of the Alamance case, and the court held that on the facts the pendency of the action in Alamance County was not necessarily a bar to this, and that the answer to the merits destroyed the plea in abatement, and offered defendant opportunity to withdraw his plea in bar and file a plea in abatement, which was declined, and defendant excepted.
The jury was then impaneled, and the following verdict was rendered:
1. Were the plaintiff and the defendant married on 22 March, (49) 1900? Answer: Yes.
2. Did the defendant abandon the plaintiff, as alleged in the complaint? Answer: Yes.
3. Has the plaintiff been a resident of the State of North Carolina for two years next preceding the filing of the complaint? Answer: Yes.
4. Is the defendant a resident of the State of North Carolina? Answer: Yes. *Page 40
5. Was the plaintiff a resident of Wake County, North Carolina, at the time this action was commenced? Answer: Yes.
Judgment on the verdict, and defendant excepted and appealed.
after stating the case: Under our present procedure, a defendant is allowed to demur, when it appears on the face of the complaint that there is another action pending between the same parties for the same cause (Rev. 1905, sec. 475, subsec. 3), and where this does not appear from the complaint the objection may be taken by answer (Revisal, 477); and it has been held with us that an objection of this character may be joined with plea in bar or an answer on the merits. Blackwellv. Dibrell,
In the case before us the present plaintiff is not the plaintiff in the action pending in Alamance County, nor is she an actor in that suit seeking affirmative relief. She asks for no judgment there and has not filed the affidavit required by our law in divorce proceedings and which we have often held is jurisdictional in its nature. Johnson v. Johnson,
In divorce proceedings a defendant sued is allowed, with us, to ask for and obtain a divorce on his own account, but he can only do so by *Page 41
cross-action or petition, accompanied by this jurisdictional affidavit and coming within the definition of the general term counterclaim, as it is understood and used in The Code. Smith v. French,
After a full and fair trial, in which defendant, having answered, was present in court, the plaintiff has established that she was abandoned by *Page 42 defendant wrongfully and without just cause, and we find nothing in the law or the facts of the case to justify the Court in depriving the plaintiff of her verdict and the rights which flow from it under the law.
No error.