Opinion
15507
February 17, 1943.
Before M.M. MANN., J., Orangeburg County, July, 1942. Order dismissing action affirmed.
Action by Blondelle Whaley and others for foreclosure of a real estate mortgage. Upon service upon them of the complaint, respondents herein filed their separate answers, in which they pleaded, among other defenses, the pendency of a prior action between substantially the same parties and on the same cause of action. On motion of the respondents, appellants were required to reply to the named defense of the separate answers. On filing of the replies, the respondents moved for dismissal of the action upon the ground that the pleadings established the named defense. The motion was granted, and the action dismissed. The appeal is from this order dismissing the action.
The order of Circuit Judge Mann, adopted as the opinion of the Court, follows:
This matter comes before me on the motion of the defendants, J.D. Slater and C.A. Cornelson, to dismiss this action on the pleadings on the ground that there is another action pending between substantially the same parties and for the same cause of action.
The present action was commenced in June of 1941, for the foreclosure of a mortgage given to V.T. Whaley on January 31, 1922, by E.C. Slater and J.D. Slater, to secure an indebtedness of $3,000.00 payable June 31, 1922. The mortgage covers two lots and a building in the City of Orangeburg.
The complaint alleges that V.T. Whaley died intestate leaving Parnell Whaley, Elsworth J. Whaley and Vastine Whaley, as his only heirs at law. Thereafter, Parnell Whaley died testate devising all of her property and estate to S.K. Whaley, Parnell B. Whaley, Tena M. Whaley and T.M. Whaley. The plaintiffs in this action are the two surviving heirs of V.T. Whaley and the legatees of Parnell Whaley, who, as shown above, is a deceased heir of V.T. Whaley.
The complaint alleges that the full amount of $3,000.00 with interest from January 31, 1922, at the rate of eight (8%) per cent, per annum, is due on the mortgage. The defendants, J.D. Slater and C.A. Cornelson, filed answers to the complaint. Among other defenses, they pleaded the pendency of a prior action as a bar to this action. Under an order of the Court, the plaintiffs filed replies to this defense of the answers of the said defendants and this motion is based on the allegations of the complaint, the answers and the replies.
It appears therefrom that on or about June 1, 1924, V.T. Whaley commenced an action in the Court of Common Pleas for Orangeburg County for the foreclosure of the same mortgage set forth in the complaint in this action. The mortgagors, C.A. Cornelson, one Mary U. Robinson, and certain other mortgage and judgment creditors of the mortgagors were named as defendants and duly served with the summons and complaint.
The mortgagors answered the complaint, denying that anything was due on the Whaley mortgage and setting up a counterclaim against the plaintiff.
C.A. Cornelson answered the complaint, setting up and asking for the foreclosure of two mortgages owned by him, as follows:
(a) Mortgage given by E.C. Slater and John D. Slater to George H. Cornelson on June 10, 1914, to secure a debt of $2,000.00 payable June 10, 1915, and covering the lot first described in the Whaley mortgage. This mortgage was assigned to C.A. Cornelson prior to the commencement of the original action.
(b) Mortgage given by E.C. Slater and John D. Slater to C.A. Cornelson on May 26, 1923, to secure a debt of $8,550.00 payable on October 26, 1923, covering both of the lots described in the Whaley mortgage.
The defendant, Mary U. Robinson, answered the complaint, setting up and asking for the foreclosure of a mortgage given to D.O. Herbert by C.A. Stroman, former owner of the real estate, on October 2, 1911, to secure an indebtedness of $1,800.00, payable October 2, 1912, the said mortgage covering the lot second described in the Whaley mortgage, and having been assigned to Mary U. Robinson. Shortly after the commencement of the original action, this mortgage was assigned to C.A. Cornelson and he is now the owner and holder thereof.
The answers of C.A. Cornelson and of Mary U. Robinson were duly served on plaintiff and on the mortgagors.
On September 8, 1924, the action was referred to Ed. C. Mann, Esq., Master for Orangeburg County, under a general order of reference.
V.T. Whaley died on August 29, 1925. No further proceedings had been taken in the case before his death and none have been taken since then.
It thus appears that at the time of Whaley's death, an action was pending for the foreclosure of the mortgage set forth in the complaint in this action. Each of the lots covered by the mortgage was encumbered by a prior lien and there was a fourth mortgage covering both of these lots. The holders of all of these liens and the owners of the fee were before the Court.
The answers of Cornelson and of Slater allege that the old action is pending, that the cause of action is the same, that the plaintiffs in the present action are in privity with the plaintiff in the original action and that the defendants in the present action are either in privity with the defendants in the original action or are substantially the same.
The plaintiffs contend that the original action has abated under Section 408 of the Code. That section expressly provides that an action shall not abate upon the death of the plaintiff if the cause of action survives. It is clear, therefore, that the action did not abate upon Whaley's death. But the plaintiffs, in their reply, allege that neither the administrator nor the heirs of V.T. Whaley nor anyone else up to the present time has made application for a substituted plaintiff, and, apparently, rely upon this non-action and lapse of time, coupled with the death of Whaley, as constituting an abatement. It is only necessary to cite Parnell v. Maner, 16 S.C. 348; Best v. Sanders, 22 S.C. 589; and Bryce v. Massey, 35 S.C. 127, 14 S.E., 768, to establish that mere lapse of time between the death of a party and the taking of the necessary steps to continue the action by or against the heir or personal representative does not terminate the action or work an abatement of it. In fact, the Code section itself provides that in case of unreasonable delay in continuing the action after the death of plaintiff, the Court "in which action is pending" may order it abated, unless it be continued by the proper parties within a time to be fixed by the Court, such time to be not less than six months nor more than one year. No such order was passed in the instant case.
My conclusion is that the original action is pending in this Court.
Identity of causes of action is admitted and it only remains to determine whether there is substantial identity of parties.
As to plaintiffs, the reply denies that the plaintiffs are in privity with the plaintiff in the original action and alleges that they are wholly different. Reference to the complaint shows that this is a mere conclusion of the pleader and does not raise a question of fact. The allegations of the complaint show that plaintiffs claim title to the mortgage and the right to maintain the action as the heirs of V.T. Whaley or as devises of his one deceased heir and thus establish privity between the present plaintiffs and the said V.T. Whaley. The requirement as to substantial identity of parties is met where the parties are in privity to each other. 1 C.J.S., Abatement and Revival, § 57, page 92.
The only question raised as to identity of defendants is the allegation of the reply that "some of the defendants in this action were not necessary parties to the 1924 action and are new parties herein * * *." It was admitted at the argument of the motion that the new parties referred to are subsequent judgment creditors of John D. Slater, whose interests are subordinate to the mortgage liens of both Cornelson and the Whaley heirs. It is apparent that the security will be exhausted by the mortgage liens and that the judgment creditors have no substantial interest in the litigation.
Of course, they are proper parties to the new action, but I do not think that the effect of the pendency of the original action is avoided by naming them as defendants.
I am aware that the rule that an action may be abated because of the pendency of a prior action, the other requirements being met, is not inflexible and that the Court may order either action abated and the other proceeded with "according to the justice of the situation." Langley v. Stokes, 105 S.C. 429, 90 S.E., 31, 32. The primary responsibility for carrying forward the original action was on V.T. Whaley and his successors in interest. If they are now permitted to abandon that action and pursue their remedy in the new case, they will be handsomely rewarded for their long delay by the conversion of what was a second mortgage, apparently of doubtful value, into a first lien on the property. It seems to me that the justice of the situation requires that this action be dismissed and the plaintiffs left to seek their remedy in the suit instituted by V.T. Whaley, and it is so ordered.
Mr. T.A. Houser, and Mr. W.R. Symmes, both of St. Matthews, Counsel for Appellants, cite: As to Abatement: 97 S.C. 214, 81 S.E., 489; 20 S.C. 477; 182 S.C. 300, 189 S.E., 217; 41 C.J., 874; 182 S.C. 498, 189 S.E., 794. As to a junior Mortgage pleading Statute of Limitations against the interest of a senior Mortgagee: 141 S.C. 156, 139 S.E., 182. As to service of Summons with Answer when Answer sets up Affirmative Defense: Code 1932, Sec. 357; 95 S.C. 343, 78 S.E., 1025; Code 1932, Sec. 8864. As to Statute of Limitations: 70 S.C. 362, 49 S.E., 872. As to Laches: 62 S.C. 73, 39 S.E., 950; 2 Rich., 484; 97 S.C. 214, 81 S.E., 489; 138 S.C. 92. As to carrying on Action after death of Plaintiff: Code 1932, Sec. 408; 55 S.C. 255; 67 S.C. 175, 45 S.E., 174. As to Identity of Parties: 62 S.C. 351. As to preserving Lien of a Mortgage: 113 S.C. 397; 104 S.C. 518. As to Adverse Possession: 159 S.C. 332, 157 S.E., 6. As to Notice of Adverse Claim: 159 S.C. 332, 157 S.E., 6. As to Mortgagor claiming adversely to Mortgagee: Rice Eq., 373. As to Bonds: 34 S.C. 236, 13 S.E., 417. As to When Statute of Limitations Begins to Run: 71 S.C. 391, 51 S.E., 113. As to collecting an amount due in excess of Penalty: 125 S.C. 493, 119 S.E., 180. As to Abandonment of an Action: 37 C.J., page 1087, citing 15 S.C. Eq., 203. As to distinction between "Abatement of a Suit" and "Abandonment of a Cause of Action": 1 R.C.L., page 10.
Messrs. Zeigler Brailsford, of Orangeburg, Counsel for Respondent, cite: As to Abatement of an Action: 16 S.C. 348; 22 S.C. 589; 35 S.C. 127, 14 S.E., 768. As to "Unreasonable Delay": 21 S.C. 145. As to Identity of Parties: 1 C.J.S., 92.
February 17, 1943.
Upon mature consideration of the record and the issues presented by the appeal, we are satisfied that the Circuit Court reached the correct conclusion. The decree of the Circuit Court is adopted as the judgment of this Court. Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE BONHAM, MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGES L.D. LIDE and E.H. HENDERSON, ACTING ASSOCIATE JUSTICES, concur.