Opinion
(Filed 29 June, 1932.)
Abatement and Revival B b — Actions and parties held not the same and plea in abatement in second action was bad.
An action by the maker to recover for the wrongful sale of certain cotton hypothecated as collateral for a note will not support a plea in abatement in an action instituted by the payee against the maker and guarantor to recover on the note and the letter of hypothecation, the parties not being the same and the causes of action being different.
APPEAL by defendants from Cowper, Special Judge, at March Term, 1932, of WAYNE.
Dickinson Freeman for plaintiff.
J. Faison Thomson, Walter G. Shepard and Hugh Brown Campbell for defendants.
Civil action to recover on promissory note and letter of hypothecation.
On 14 January, 1931, L. F. Herring instituted an action in Greene County against B. G. Thompson to recover damages for wrongful sale of certain cotton hypothecated as collateral to Herring's note. Summons was served 16 January, and complaint filed 20 January.
On 15 January, 1931, B. G. Thompson instituted this action in Wayne County against L. F. Herring and Mrs. Elmetta Herring to recover on promissory note and letter of hypothecation. Duly verified complaint was filed with issuance of summons and both served on defendants 17 January.
Plea in abatement is filed by the defendants on the ground that the same subject-matter is involved in the action instituted in Greene County by L. F. Herring against B. G. Thompson.
From the overruling of the plea in abatement, the defendants appeal, assigning errors.
After stating the case: The plea in abatement was properly overruled. Brown v. Polk, 201 N.C. 375, 160 S.E. 357. The parties are not the same and the causes of action are different in the two suits. A final judgment in the action brought in Greene County by L. F. Herring against B. G. Thompson would not support a plea of res judicata in the present action instituted in Wayne County. This is one of the tests of identity. Bank v. Broadhurst, 197 N.C. 365, 148 S.E. 452.
Affirmed.