Fletcher Lumber Co. v. Wilson

21 S.E.2d 893, 222 N.C. 87, 1942 N.C. LEXIS 31

Opinion

Schenck, J.

The reference made in the complaint to the Special Proceeding pending in Yancey County in effect incorporated that proceeding into this case. Alexander v. Norwood, 118 N. C., 381, 24 S. E., 119. The contract which is the basis of the cause of action alleged in the complaint is also the basis of the controversy involved in the Special Proceeding, and the parties to the cause of action alleged in the complaint are the same as the parties in the controversy involved in the Special Proceeding. Hence, the remedy of the plaintiff in this action is by a motion in the cause in the Special Proceeding, and not by an independent action. See opinion in said Special Proceeding, post, 99.

“If it appears upon the complaint that there is another action pending between the same parties for the same cause, it is ground for demurrer.” McIntosh, N. C. Prac. & Proc., par. 440, p. 451, and cases there cited.

The demurrer of the defendants, as commissioners, was properly sustained.

The demurrer of the defendants, as individuals, was also manifestly properly sustained, since the complaint fails to allege that any contract was entered into by the defendants in their individual capacity.

The judgment of the Superior Court is

Affirmed.