Seawell v. Purvis

59 S.E.2d 572, 232 N.C. 194, 1950 N.C. LEXIS 416

Opinion

WiNbobNe, J.

An inspection of the record on this appeal reveals error in law upon the face of the record. The pendency of a prior special proceeding, being pleaded in bar of this special proceeding, as shown by answer appearing in the record, it was the duty of the trial judge to have passed upon the plea before proceeding to give further consideration to other matters at issue. And if there were a prior special proceeding pending between the same parties on substantially the same subject matter, and all the material questions and rights can be determined therein, this special proceeding should be dismissed. See Dwiggins v. Bus Co., 230 N.C. 234, 52 S.E. 2d 892, and cases there cited, where the subject has been recently treated. See also Grady v. Parker, 230 N.C. 166, 52 S.E. 2d 273.

In this State a civil action is deemed to be pending from the time it is commenced, G.S. 1-88, until its final determination. G.S. 1-208, McFetters v. McFetters, 219 N.C. 731, 14 S.E. 2d 833; Moore v. Moore, 224 N.C. 552, 31 S.E. 2d 690; Dwiggins v. Bus Co., supra. See also Henderson v. Henderson, ante, 1. And the provisions of the statutes on civil procedure are applicable to special proceedings except as otherwise provided. G.S. 1-393.

In the light of the decision in the Dwiggins and Grady cases, supra, the judgment from which appeal is taken will be set aside, and further proceeding had on the plea of the pendency of another action in accordance with this opinion.

Error and remanded.