The defendant's motion challenges the jurisdiction of the court and is without merit as to plaintiff's primary cause of action. The plea of former action pending is not jurisdictional, though sometimes referred to as such. It is a plea in abatement provided to avoid the splitting of actions and the piecemeal trial of controversies, prevent a multiplicity of suits between the same parties concerning the same subject matter, and eliminate the possibility of conflicting verdicts and judgments based on substantially the same evidence. The court has jurisdiction of the parties and subject of the action. If the plea is not interposed in proper manner, the court may proceed to judgment and the judgment, once entered, is binding upon the parties. City of Raleigh v. Hatcher, 220 N.C. 613, 18 S.E.2d 207; Long v. Jarratt, 94 N.C. 443.
The motion may not be treated as a demurrer to the complaint, for a demurrer is proper only when it appears on the face of the complaint that "3. There is another action pending between the same parties for the same cause * * *." G.S. § 1-127. A speaking demurrer is not permitted. To render the complaint demurrable, that another action is pending must appear on the face of the complaint. Otherwise the plea must be taken advantage of by answer. Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119; Reed v. Carolina Mortgage Co., 207 N.C. 27, 175 S.E. 834; Fletcher Lumber Co. v. Wilson, 222 N.C. 87, 21 S.E.2d 893; Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690.
Even so, plaintiff admitted the pendency of the divorce action. The court was thereby advised of the possible conflict of jurisdiction, and might take notice thereof ex mero motu. Long v. Jarratt, supra; Allen v. Salley, 179 N.C. 147, 101 S.E. 545. We may, therefore, waive the procedural defects in defendant's position and come to the merits of the controversy.
The court below is without jurisdiction to hear and determine the custody of the child. When a divorce action is pending, jurisdiction over the custody of the children born of the marriage rests exclusively in the court before whom the divorce action is pending. G.S. § 50-13; Winfield v. Winfield, 228 N.C. 256, 45 S.E.2d 259; Robbins v. Robbins, 229 N.C. 430, 50 S.E.2d 183; Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906. The plaintiff here must press her claim to the custody of her child in the divorce action pending in Davidson County or not at all. It is not a controversy determinable in this action.
The rule denies a party the right to maintain an action when there is a prior action pending between the same parties concerning the same subject matter. But "the same subject matter" as here used does not include a separate and distinct cause of action not arising out of the matters and things alleged in the complaint in the first action. It embraces only matters which may properly be pleaded in the first action by way of affirmative defense, counterclaim, or setoff, and it must appear that the rights asserted in the second action may be litigated in the first.
As her cause of action is not litigable in the divorce action, the latter does not constitute a former action pending within the meaning of the rule. She may pursue her remedy in the court below.
Likewise, she is entitled to seek alimony and counsel fees pendente lite to enable her to prosecute her action. It is so stipulated in the statute which creates her cause of action. G.S. § 50-16.
The defendant's motion to dismiss the appeal is without merit. No service or settlement of a case on appeal was required. As the cause was heard on the motion and the pleadings, the record proper constitutes the case to be filed in this Court. Privette v. Allen, 227 N.C. 164, 41 S.E.2d 364; Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22. The judge so ordered at the time appeal was noted.
For the reasons stated the judgment below is