#### JAMES BRADY BROOKS v. CURTIS CAIN

No. 7026SC371

(Filed 5 August 1970)

Abatement and Revival § 6— priority of institution of actions

Where plaintiff had failed to keep up the chain of summonses in his original action, but on 20 February 1969 plaintiff had an endorsement made on the original summons and thereafter kept the summons alive until service was had on defendant on 11 November 1969, plaintiff’s action was commenced on 20 February 1969, prior to the action commenced by defendant on 10 March 1969.

Appeal by defendant from McLean, J., 12 February 1970, Schedule “D” Session, Mecklenburg Superior Court.

Defendant appeals from an order denying his plea to dismiss plaintiff’s action. The plea was made on the grounds that there was a prior action pending between the same parties for the same cause.

B. Kermit Caldwell for plaintiff appellee.

Ottway Burton for defendant appellant.

*275Vaughn, J.

The order appealed from is aifirmed for the reason that it does not appear that a prior action was pending between the same parties for the same cause. Plaintiff failed to keep up the chain of summonses in his original action. On 20 February 1969, however, plaintiff had an endorsement made on the original summons and thereafter kept the summons alive until service was had on defendant on 11 November 1969. Plaintiff’s action was therefore commenced on 20 February 1969. The trial judge correctly held that plaintiff’s action was commenced prior to one commenced by defendant in Randolph County on 10 March 1969.

Affirmed.

Campbell and Britt, JJ., concur.