
    IRENE J. COOK v. JOHN M. COOK.
    (Filed 17 April, 1912.)
    1. Pleadings — Plea in Bar — Former Action — Answer—Joinder—De-murrer — Practice.
    A defendant may demur to a complaint from which it appears that another action is pending between the same parties for the same cause, Revisa!, sec. 475 (3) ; and when it does not so appear, the objection may he taken by answer to the merits joined with a plea in bar. Revi sal, 477.
    
      2. Same — Appeal and Error — Harmless Error.
    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. Pleading's — 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.
    
      Appeal from Peebles, J., at October Term, 1911, of Waee.
    Civil action for divorce a, mesna, etc. Tbe present action was instituted-26 August, 1911, and summons therein ivas personally served on defendant 1 September, 1911. Plaintiff filed her complaint to September Term, 1911, for divorce from bed and board on account of abandonment, “unlawfully and without just cause,” the complaint being accompanied by the formal affidavit required by the statute. Defendant thereupon answered, denying the alleged abandonment, and answered further, in bar of plaintiff’s right to maintain her action, that the defendant had theretofore commenced an action for divorce a vinculo for cause specified in subsec. 5, Revisal sec. 1561, that is, because the parties had lived separate and apart for ten successive years, had resided in the State for \that period, and there were no children born of the marriage, etc.
    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 Ala-mance County was hot 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:
    
      1. Were tbe plaintiff and tbe defendant married^on 22 March, 1900? Answer: Yes.
    2. Did tbe defendant abandon tbe plaintiff, as alleged in tbe complaint? Answer: Yes.
    
      3. Has tbe plaintiff been a resident of tbe State of North Carolina for two years next preceding tbe filing of tbe complaint? Answer: Yes.
    4. Is tbe defendant a resident of tbe State of North Carolina ? Answer: Yes.
    5. Was tbe plaintiff a resident of Wake County, North Carolina, at tbe time this action was commenced ? Answer: Yes.
    Judgment on tbe verdict, and defendant excexoted and appealed.
    
      B. N. Simms for plaintiff.
    
    
      Parker & Parker, Pong & Long, Dameron & Long, and Holdr-ing & Snow for defendant.
    
   Hoke, J.,

after stating tbe case: Under our present procedure, a defendant is allowed to demur, when it appears on tbe face of tbe complaint that there is another action pending between tbe same parties for tbe same cause (Rev. 1905, sec. 415, subsec. 3), and where this does not appear from tbe complaint tbe objection may be taken by answer (Revisal, 417); and it has been held with us that an objection of this character may be joined with plea in bar or an answer on tbe merits. Blackwell v. Dibrell, 103 N. C., 270, citing on this position Pomeroy’s Remedies, sec. 121. Tbe judge below, therefore, bad no right to-require defendant to withdraw bis answer on tbe merits as a condition for having bis plea in abatement considered and passed upon. We bold, however, that tbe verdict and judgment should not be disturbed on this account, being of opinion that tbe pendency of defendant’s suit in Alamance County in which tbe husband is seeking to obtain a divorce a vinculo, is not necessarily a good plea against tbe present prosecution of plaintiff’s suit for divorce from bed and board. As a general rule, this right to plead tbe pendency of another action between tbe same ¡parties, before judgment bad, is regarded to a large extent as a rule of convenience, resting on the principle embodied in tbe maxim, “Nemo debet bis vexare ,” etc. Tbe defect is one that can be waived, and it may also be cured by dismissing tbe prior action at any time before tbe bearing (1 Cyc., p. 25; Grubbs v. Ferguson, 136 N. C., 60), and tbe plea presenting it is usually confined to suits in wbicb tbe same litigant is plaintiff, or is at least an actor seeking tbe same relief. Long v. Goal and Iron Co., 233 Mo., 714; Rodney v. Gibbs, 184 Mo., 1, 10; Craig v. Dougherty, 45 Mo., 294; Mattel v. Conant, 156 Mass., 418; Washburn & Co. v. Scott Co., 22 Fed., 711; Wadsworth v. Johnston, 41 Cal., 61; New England Screw Co. v. Blevin, Blackford’s C. C., p. 240.

In tbe case before us tbe present plaintiff is not tbe plaintiff in tbe action pending in Alamance County, nor is sbe an actor in tbat suit seeking affirmative relief. Sbe asks for no judgment there and bas not filed tbe affidavit required by Qur law in divorce proceedings and wbicb we bave often beld 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, witb us, to ask for and obtain a divorce on bis own account, but be can only do so by cross-action or petition, accompanied by tbis jurisdictional affidavit and coming witbin tbe definition of tbe general term counterclaim, as it is understood and used in Tbe Code. Smith v. French, 141 N. C., 7, citing Green on Code Pleadings and Practice, sec. 815. It is well recognized bere tbat a party sued is not required as a rule to set up a counterclaim existent in bis favor, but is allowed to assert tbe 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 tbat while tbis rule may bold in ordinary actions, it should not obtain in divorce proceedings, because tbe status of tbe 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 tbe hope tbat a different course would more likely lead to a reconciliation; and assuredly we think tbe reluctance or failure to take- such course from such a motive should not be beld to defeat or prejudice tbe right of a defendant to bring bis canse before tbe court at another time. This plea, upon which defendant now relies to defeat plaintiff’s recovery, is referred to in 1st Pl. and Pr., p. 750, as available when there is a former suit pending in the same -jurisdiction between the same parties for the same cause of action and for the same relief. Not only is present plaintiff not an actor in the suit in Alamance County, but the relief sought by her is not the same as that involved in the other issue, nor is it dependent altogether on the same state of facts. And authority seems to favor the position that the pendency of an action seeking one kind of divorce does not necessarily forbid the maintenance of a suit to secure a divorce of a different kind. Simpson v. Simpson (41 Pac., 804), Cal., Sept., 1895; Stevens v. Stevens, 42 Mass., 279; Monroy v. Monroy, 1 Edw. Chan., p. 382; Thornton v. Thornton, 11 Pro. Div., 1886, p. 176; 2 Bishop on Marriage and Divorce, sec. 565; 1 Cyc., p. 31; 9 Amer. and Eng. Ency. (2d), p. 840. In this last citation the author says: “It is not a bar to a suit for separation that another suit is pending for an absolute divorce, and the courts will under some circumstances refuse to stay the former proceedings until the latter is determined.” Pursuing this statement, if it should be made to appear that a prior suit was pending between the same parties which embraced the same issue and involved to a large extent the same state of facts, a court would and should, if right and justice would be thereby best .promoted, stay the proceedings until the results off the former suit could be attained ; but as we have endeavored to show, there is nothing in this ease that requires such a course as a matter of law, and nothing appears of record to justify it as a matter of discretion.

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.

Clark, C. J.,

dissenting: Tbe defendant brought an action against bis wife, tbe plaintiff herein, for an absolute divorce in Alamance County, which was the place of his residence, at that date, September, 1910. The present plaintiff, the defendant in that action, appeared and filed an answer. Subsequently she instituted this action-in Wake, in August, 1911. The defendant herein moved to abate this action by reason of, the pendency of his prior action which had been brought in Alamance. This motion should have been granted.

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 th'at, 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, Holce, J., says: “Actions for divorce deal with the status of the parties,” and held that, there having been a decree of divorce between the parties, a subsequent action would be barred, though it might set up matters which would have affected the former decree, if pleaded in time.

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 Ala-mance, 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.

In DeHaley v. DeHaley, 74 Cal., 489, tbe point is expressly decided, tbe Court bolding that while an action for a divorce is pending, one of tbe parties thereto cannot maintain a subsequent action for divorce against tbe other, but that all matters affecting tbe status .of tbe parties should be determined in tbe action first brought, and not by a new action setting up matters in recrimination or defense. In 2 Nelson Separation and Divorce, sec. 745, it is said: “Tbe term counterclaim is not applicable to a cause for divorce, which is neither a tort nor a breach of contract, but is a cause of action unlike all other causes.”

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, 339 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.

Walker, J., concurs in this dissent.  