The order of his Honor, Judge Allen, is itself a full statement of the point at issue.
We think the order made by bis Honor is entirely correct and the same is
Affirmed.
Quelch v. Futch, 179 N.C. 691 (1920)
March 24, 1920
·
Supreme Court of North Carolina
179 N.C. 691
J. P. QUELCH et al. v. D. K. FUTCH et al.
(Filed 24 March, 1920.)
Judgments, Final — Husband and Wife — Action Against Wife — Independent Action — Equities of Wife.
Where the husband is sued in ejectment to final judgment, and thereafter summons is issued as a continuance of the same cause to recover a judgment against the wife, the action against her is properly dismissed, it being allowed the plaintiff to bring an independent action against her, and for her to prosecute her suit against her husband for the enforcement of equities she may claim from him in the lands.
Appeal by defendant from Allen, J., at tbe October Term, 1919, of New HaNOver.
Motion in tbe cause beard October Term, 1919, Superior Court New Hanover County, Allen, J. This action was brought against D. K. Futch and not against Hannah T. Futch. Tbe cause came to this Court and tbe final decree entered 174 N. 0., 395; 175 N. C., 694. After tbe final judgment was entered tbe plaintiff issued tbe summons against Hannah T. Futch, wife of D. K. Futch, seeking to continue tbe action of ejectment and to recover a judgment against her. Tbe defendant respondent, Hannah T. Futch, moved to dismiss tbe action as to herself because she bad been brought in after tbe final decree bad been entered, and tbat tbe plaintiff’s remedy was by bringing a separate action against her, whereupon tbe court made tbe following order:
“This cause coming on to be beard before bis Honor, Oliver H. Allen, Judge presiding, at tbe October Term, A.D., 1919, of tbe Superior Court *692of New Hanover County, and at tbe conclusion of tbe reading of tbe pleadings in tbis cause tbe plaintiffs made a motion to dismiss tbe action as to D. K. Eutcb upon tbé ground tbat tbe action was at an end as to bim for tbe reason tbat a final judgment bad heretofore in tbis cause been entered as to bim, from wbicb judgment be appealed' to tbe Supreme Court, and upon tbe appeal tbe Supreme Court affirmed tbe judgment of tbe lower court, and tbat upon tbe coming down of tbe opinion from tbe Supreme Court tbe judgment was entered against D. K. -Eutcb according to tbe certificate from tbe Supreme Court, as appears of record in tbis cause, and for judgment striking out tbe defendant Hannab T. Futch’s answer, and for judgment. against ber for tbe failure to file a defense bond as required by tbe statute, and for judgment against Hannab T. Eutcb on tbe pleadings because as a matter of law Hannab T. Eutcb was bound by tbe judgment against ber bus-band, D. K. Eutcb, heretofore entered in tbis cause, and tbe defendant Hannab T. Eutcb having made a motion to dismiss tbis action as against ber because tbe plaintiff bad filed no prosecution bond as required by law, and tbat upon ber answer on tbe record it appeared tbat she bad been made a party defendant to tbis action after tbe action bad finally terminated, it having originally been brought against ber husband, and upon tbe further ground tbat from tbe defendant’s answer it appeared tbat she bad equities and raised issues between herself and ber husband, and tbat Hannab T. Futcb was wrongfully made a party defendant to tbis action;
“And tbe court being of opinion, at tbe conclusion of all tbe argument and readings of tbe record in tbis cause, tbat Hannab T. Futcb was improvidently made a party to tbis action, and tbat tbe action should be dismissed as to ber, and tbat it would be more conducive to an orderly trial of all tbe matters in dispute between the parties if this action is dismissed as to Hannab T. Futcb without prejudice to tbe rights of any of the parties hereto to bring and prosecute a new action if tbe plaintiffs so desire:
“It is, therefore, ordered, adjudged, and decreed by tbe court tbat tbis action be and tbe same is hereby dismissed as to Hannab T Futch, without prejudice to tbe rights of tbe plaintiffs to bring a new action against tbe said Hannab T. Futcb and ber husband, D. 3L Futcb, if they so desire, or against either one or tbe other of them; and tbat tbe defendant Hannab T. Futcb and D. K. Futcb recover of tbe plaintiffs tbe costs of tbis action incurred since tbe said Hannab T. Futcb was made a party thereto.
“It is further ordered and adjudged by tbe court tbat tbe said Han-nab T. Futcb may,, if she so desires, bring and prosecute ber action against ber said husband without being prejudiced by tbis order, and *693’ tbis judgment is to be entered as a final judgment in tbis case, and tbe case is ordered stricken from tbe docket of tbis court. Defendant’s motion was made first and allowed; plaintiff’s motions were not passed on. Plaintiff allowed to file prosecution bond.
O. H. Allen,
Judge Presiding.
From the foregoing judgment, the plaintiff having excepted, appealed to the Supreme Court.
Wright & Stevens and McClammy & Burgwin for plaintiffs.
E. K. Bryan for defendant Hannah T. Butch.