Cook v. . CookCook v. . Cook
A defendant may demur to a complaint from which it appears that another action is pending between the same parties for the same cause, Revisal, sec. 475 (3); and when it does not so appear, the objection may be taken by answer to the merits joined with a plea in bar. Revisal, 477.
In an action for divorce the answer set up a plea in abatement that an action was then pending between the same parties for the same cause, and further answered to the merits: Held, error for the trial judge to require the defendant to withdraw his answer to the merits before considering his plea in abatement, but harmless when it appears on appeal that his plea was bad.
3. Pleadings — Former Action — Plea in Bar — Waiver.
The right to plead the pendency of another action between the same parties for the same cause before judgment had is. to a large extent, a rule founded on convenience, and same may be waived or cured by dismissing the prior action at any time before the hearing.
4. Divorce — Cross-action — Affirmative Relief — Jurisdictional Affidavits — Practice.
While a defendant in an action for divorce may, by cross-action or petition, obtain a divorce on his own account, he must file an affidavit required by statute in such causes in order to confer jurisdiction on the court.
5. Divorce — Cross-action — Affirmative Relief — Counterclaim — Practice.
The doctrine that a party sued is not required, as a rule, to set up a counterclaim existent in his favor, but allowed to assert it in a different or a subsequent action, applies to a defense set up in an action of divorce, unaffected by the fact that the status of the parties is necessarily therein involved.
6. Same — Former Action — Abatement — Same Cause — Independent Action.
The wife, being party defendant in an action commenced by the husband for a divorce, answered denying the facts relied upon by plaintiff, but without asking affirmative relief, and without making the affidavit required in actions for divorce. In another jurisdiction she subsequently brought an independent action for divorce for abandonment, in which the defendant moved to vacate upon the ground of the pendency of the former action for divorce brought by him: Held, the present plaintiff is not the actor in the former suit, and the relief sought by her is not the same as that involved in the other issue and is not altogether dependent upon the. same state of facts, and the pendency of the husband‘s action for divorce is not a bar to that of his wife subsequently brought.,
CLARK. C. J., and WALKER, J., dissenting.
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:
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.
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.
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, 142 N. C., 462; Hopkins v. Hopkins, 132 N. C., 22.
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 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, 141 N. C., 7, citing Green on Code Pleadings and Practice, sec. 815. It is well recognized here that a party sued is not required as a rule to set up a counterclaim existent in his favor, but is allowed to assert the 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 that while this rule may hold in ordinary actions, it should not obtain in divorce proceedings, because the status of the 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 the hope that a different course would more likely lead to a reconciliation; and assuredly we think the reluctance or failure to take such course from such a motive should not be held to defeat or prejudice the 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.
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 that, 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,
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 Alamance, 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, 139 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.