Sheffield v. Alexander, 194 N.C. 744 (1927)

Dec. 21, 1927 · Supreme Court of North Carolina

194 N.C. 744

J. R. SHEFFIELD, W. E. SHEFFIELD and M. L. SHEFFIELD, Partners, Trading as Sheffield Brothers, v. PERRY M. ALEXANDER and J. E. PATTON, Individually and as Partners, Doing Business as Alexander & Patton, and NATIONAL SURETY COMPANY.

(Filed 21 December, 1927.)

Appeal and Error — Objections and Exceptions — Parties—Causes of Action —Misjoinder—Statutes.

In order to review the action of the referee in permitting amendments to pleadings and the making of new parties, C. S., 576, and contending successfully on appeal that there was a misjoinder of parties and causes of action, it is required that the appellant should have excepted in apt time and have preserved his exceptions or they will not be considered on appeal to the Supreme Court.

Appeal by National Surety Company from Harding, J., at November-December Term, 1926, of Haywood.

Civil action instituted by J. R. Sheffield, W. E. Sheffield and M. L. Sheffield, partners, trading as Sheffield Brothers, against Perry M. Alexander and J. E. Patton, partners, doing business as Alexander & Patton, and the National Surety Company, to recover on the bond given by the individual defendants as principals, and the National Surety Company as surety, for materials furnished and labor done on State Highway Project No. 940 in Haywood County. Various parties filed interpleas to recover on the same bond, all of which have been disposed of except the interpleas filed by W. H. Porter and W. H. Porter and Wiley Davis.

By consent the cause was referred under the statute to Hon. S. W. Black, who, in accordance with the usual course and practice, found the facts and reported the same, together with his conclusions of law, to the court. On exceptions duly filed, and after hearing had thereon, the report of the referee, with respect to the claims of W. H. Porter for $365, and W. H. Porter and Wiley Davis for $1,271.33, the only ones questioned by the appeal, was approved by the judge of the Superior Court. The National Surety Company appeals, assigning errors.

Marie W. Brown for National Surety Company.

Hollins & Smothers for W. H. Porter et at.

Stacy, C. J.

Over objection of the National Surety Company the referee allowed Wiley Davis -to come in as a party plaintiff and adopt the complaint previously filed by his copartner, W. H. Porter. The authority of the referee to allow amendments to pleadings and to make new parties is expressly given by C. S., 576. Rosenbacher & Bro. v. Martin, 170 N. C., 236, 86 S. E., 785; Blanton v. Bostic, 126 N. C., 418, 35 S. E., 1035; Koonce v. Pelletier, 115 N. C., 233, 20 S. E., 391.

It is contended by tbe National Surety Company that by tbe amendment above mentioned a new and independent cause of action was thereby introduced, entitling it to bave tbe proceeding dismissed on demurrer because of a misjoinder of botb parties and causes of action. Bank v. Angelo, 193 N. C., 576, 137 S. E., 705. It is sufficient to say, in answer to tbis position, tbat tbe record shows no more than a simple objection and exception noted at tbe time, and neither tbe referee nor tbe judge of tbe Superior Court was asked to rule upon tbe question now sought to be presented. Tbe demurrer, upon tbe ground stated, comes too late. Godwin v. Jernigan, 174 N. C., 76, 93 S. E., 443; C. S., 518.

Nor is there any exceptive assignment of error properly raising tbe question, debated on brief, as to whether tbe bringing in of Wiley Davis as a party plaintiff so changed tbe original cause of action instituted in tbe name of W. H. Porter alone, as to bar a recovery on tbe ground tbat said claim was not presented within tbe time allowed by tbe statute. Chapter 160, sec. 3, Public Laws 1923; State Prison v. Bonding Co., 192 N. C., 391, 135 S. E., 125. But even if tbe question were before us, it would seem tbat C. S., 547, is broad enough to warrant tbe action of tbe referee in allowing tbe amendment, which was later approved by tbe judge of tbe Superior Court. 20 R. C. L., 920; 30 Cyc., 567.

A careful perusal of tbe record leaves us with tbe impression tbat tbe cause has been beard and determined substantially in accord with tbe principles of law applicable and tbat tbe judgment ought to be upheld.

Affirmed.