Summary
holding that plaintiff's seeking damages in the first suit and injunctive relief in a second suit against the same defendant on the same grounds was "not only taking two bites at the cherry, but biting in two places at the same time."
Summary of this case from State v. State PropsOpinion
(Filed 22 January, 1936.)
1. State E b —
The original jurisdiction of the Supreme Court to hear claims against the State may not be invoked upon a complaint which presents no serious question of law, but bases the right to recover upon allegations of fact.
2. Abatement and Revival B b —
Where an action is pending between the parties, plaintiff may not maintain another action involving the same subject matter, although in the first suit he demands damages and in the second injunctive relief.
THIS is a proceeding invoking the original jurisdiction of the Supreme Court to hear an alleged claim against the State.
Kenneth C. Royall and J. Faison Thomson for plaintiff.
Attorney-General Seawell and Assistant Attorneys-General Aiken and Bruton for the State.
J. S. Massenburg and Langston, Allen Taylor for other defendants.
DEVIN, J., took no part in the consideration or decision of this case.
The allegation of the complaint upon which it is thought the original jurisdiction of the Court may properly be invoked is "that the defendant North Carolina Emergency Relief Administration is a State agency, existing under the laws of the State of North Carolina; and that at all times hereinafter mentioned the defendants Annie L. O'Berry, John H. Bass, Ben W. Southerland, and Jim Coleman were acting in their official capacity as agents and representatives of North Carolina Emergency Relief Administration."
Then follows claim for unliquidated damages arising out of alleged breach of contract and tortious interference with plaintiff's contract rights in almost identical language with that appearing in the complaint filed in the case of Vinson v. O'Berry, on appeal from Wayne Superior Court, ante, 287.
The defendants named in the summons and complaint demur for want of jurisdiction. The State, appearing specially, moves to dismiss.
The allegations of the complaint present no serious question of law, and the facts stated therein are not sufficient to invoke the original jurisdiction of the Supreme Court. Cohoon v. State, 201 N.C. 312, 160 S.E. 183; Warren v. State, 199 N.C. 211, 153 S.E. 864; Lacy v. State, 195 N.C. 284, 141 S.E. 886.
Moreover, it appears on the face of the complaint that another action between the same parties, involving the same subject matter, is now pending on appeal from Wayne Superior Court, Vinson v. O'Berry, ante, 287, albeit the plaintiff says in his brief he is seeking injunctive relief there and damages here. Still this is not only taking two bites at the cherry, but biting in two places at the same time.
The proceeding must be dismissed for want of jurisdictional showing.
Proceeding dismissed.
DEVIN, J., took no part in the consideration or decision of this case.