The opinion
CoNNOR, J.
There was no error in the refusal of the trial court to dismiss this action, on motion of defendant, for that the action instituted in the Superior Court of Beaufort County, wherein the plaintiff and the defendants in this action are parties, is still pending. The pleadings in that action do not appear on the record in this action. The judgment in that action, however, which does appear on the record in this action, purports to be and is final and conclusive of the rights of the parties thereto with respect to all the matters involved therein. The purpose of that action, as appears from the judgment, was to have an adjudication of the rights of the parties thereto with respect to the use of Pungo River Canal for drainage of waters from the Albemarle Drainage District into Pungo River. It does not appear that the plaintiffs therein, including the plaintiff in this action, had alleged any facts in their pleadings upon which they or either of them demanded judgment for damages. It does not appear that at the date of the commencement of said action, or at the date of the rendition of the judgment therein, any of the plaintiffs had suffered any damages caused by the wrongful acts of defendant drainage district. The cause of action alleged in the complaint in this
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action has arisen since the rendition of the judgment in that action. Upon this cause of action, plaintiff alone is entitled to recover, whereas upon the cause of action on which judgment was rendered in the action pending in the Superior Court of Beaufort County, only the plaintiff therein, Pungo River Drainage District, was entitled to recover. The owners of land included in said district were not necessary, even if proper parties. Plaintiff could not have the relief in the action pending in Beaufort County, which he is seeking in this action. He can, therefore, maintain an independent action for such relief. In
Crawford v. Allen,
180 N. C., 245 , 104 S. E., 468 , quoting from
Hudson v. Coble,
97 N. C., 263 , 1 S. E., 841 , it is said: “Numerous adjudications have established the general proposition that when relief can be had in a pending cause, it must be there sought.
Murrill v. Murrill,
84 N. C., 182 , and many other cases.” Where, however, the relief sought cannot he had in a pending cause, the plaintiff, although both he and the defendants are parties to such cause, may maintain an independent action for such relief. Defendant’s first assignment of error based upon exceptions to the refusal of the court to dismiss the action, or to nonsuit the plaintiff, at the close of all the evidence, is not sustained.
Nor can the other assignments of error, based upon exceptions to instructions of the court to the jury, be sustained.
The jury was properly instructed by the court that defendants’ liability to plaintiff in this action, was to be determined, primarily, by their finding from the evidence whether or not defendant was negligent in failing to restore and maintain the temporary dams, pending the erection of the permanent dams, as required by the judgment in the action instituted in Beaufort County. The jury was not instructed that defendant was liable as an insurer, for damages sustained by plaintiff.
We find no error in the charge. The judgment is affirmed.
No error.