Shemwell ex rel. Shemwell v. Lethco, 198 N.C. 346 (1930)

Feb. 19, 1930 · Supreme Court of North Carolina

198 N.C. 346

EVERARD SHEMWELL, by BAXTER SHEMWELL, His Guardian, v. FRANK D. LETHCO, SOUTHERN REAL ESTATE LOAN AND TRUST COMPANY et al.

(Filed 19 February, 1930.)

Pleadings D b — Where there is misjoinder of parties and canses, action should he dimissed.

Where new parties to an action are made who demur-upon the ground, of misjoinder of parties and causes of action as to them, the demurrer will be sustained and the cause of action demurred to will be dismissed if it appears upon the pleadings liberally construed that the demurrer is well taken. C. S'., 511, 535.

Appeal by defendant Letbco, from Staclc, J., at April Term, 1929, of Mecklembueg.

Affirmed.

Tbis is an-action brought by plaintiff against tbe defendants, alleging that a certain note set forth in tbe complaint, secured by deed in trust made by tbe Asheville Realty Company, a corporation, was void and of no effect 'and praying that same be canceled and asking injunctive relief pendente lite. Tbe defendant Letbco and Trust Company answered denying tbe allegations. Tbe defendant Letbco and Trust Company further answer and as a cross-complaint, or bill of action, make numerous allegations and pray that (1) Tbe Asheville Realty Company, (2) Baxter Shemwell, (3) A. L. Sink, (4) Fred Secbrist and (5) Chas. Young be made parties defendant. Tbe plaintiffs reply. Upon notice tbe matter of additional parties was beard before tbe clerk and an order made to tbe effect that they be made parties. Plaintiff excepted and appealed to tbe Superior Court. Tbe Superior Court judge allowed tbe motion making tbe additional parties. Tbe plaintiff excepted, assigned error and appealed to tbe Supreme Court.

This appeal is No. 478, at tbe Spring Term, 1929, of tbe Supreme Court; under an agreed stipulation, it was continued to be beard at tbe Fall Term, 1929, when tbe defendants’ appeal from tbe judgment, sustaining tbe demurrer to defendants’ cross-complaint or action, is beard. These two appeals are now considered by tbis Court together. Tbe new parties brought in made a motion that the original defendants recast their answer and cross-actions, etc.

At April Term of the Superior Court the matter coming on to be heard on the foregoing motion, the defendant Lethco tendered judgment by default final on his cross-complaint or action. The court below refused to sign the judgment tendered and defendant Lethco excepted. At said term the new parties asked to withdraw their motion to have defendants recast their answer and cross-complaint, etc., without prejudice and file demurrer to the cross-complaint set forth in the answer of defendant Lethco and Southern Eeal Estate Loan and Trust Company. The Court below allowed the motion, and defendant Letcho excepted.

The demurrer is as follows:

“The defendants, Asheville Eealty Company, Baxter Shemweli, A. L. Sink, Fred Sechrist and Charles Young, demur to the cross-action set forth in the answer of Frank D. Lethco and Southern Eeal Estate Loan and Trust Company upon the following grounds:

1. For that the allegations contained in said answer do not state facts sufficient to constitute a cause of action against these defendants or any of them.

2. For that there is a misjoinder of parties and causes in that the causes of action sought to be alleged in the answer of said defendants do not affect the plaintiff or his cause of action as set forth in his complaint.

3. For that there is a misjoinder of the parties and causes in that all of the causes of action attempted to be alleged in the said answer against these defendants do not all affect all of the defendants.

Defendant Lethco excepted. The court below sustained the demurrer. Defendant Lethco excepted. On the exceptions above set forth by defendant Lethco, assignments of error were duly made and .an appeal taken to this Court.

Tillett, Tillett & Kennedy for plaintiff, Baxter Shemweli and Ashe-ville Realty Company.

H. L. Taylor for defendant Lethco.

C. H. Cover for A. L. Sink, Fred Sechrist and Chas. Young.

Per Curiam.

Pending this appeal the defendant Lethco died. The Commercial National Bank of Charlotte duly qualified as executor of his will, and has been made a party defendant in the action and permitted to .and has adopted the pleadings heretofore had in this action. We do not think that any of the assignments of error made by defendant Lethco can be sustained. The Superior Court has large discretion in reference to some of defendants’ assignments of error and from the view we take of this matter, if error not prejudicial. "Without going into an analysis of the cross-complaint, bill or action, we think the court below correct in sustaining the demurrer filed by the new parties brought into the original action by the cross-complaint, bill or action of defendant Lethco, when he filed answer to plaintiff’s complaint.

In Bank v. Angelo, 193 N. C., at p. 518, citing numerous authorities, it is said: “It is well settled that where there is a misjoinder, both of parties and causes of action, and a demurrer is interposed upon this ground, the demurrer should be sustained and the action dismissed.” Land Co. v. Beatty, 69 N. C., 329; Rose v. Warehouse Co., 182 N. C., 107; Pender County v. King, 197 N. C., 50.

“A misjoinder of parties is not a material defect, and the action will proceed as to the parties properly joined; a misjoinder of causes is a defect, which may cause a separation into different actions; and a mis-joinder of parties and of causes is a more serious defect, in that it may result in a dismissal of the action.” McIntosh, N. C. Prac. & Proc. in Civil Cases, sec. 442, p. 453. See C. S., 456, 460, 506, 507, 508, 511, 516, 519, 521, 522; Merrill v. Merrill, 92 N. C., 657; Killian v. Hanna, 193 N. C., 17; Thompson v. Buchanan, 195 N. C., 155.

Under our Code of Civil Procedure, we have universally held that in construing pleadings for the purpose of determining its effect, its allegations are liberally construed with a view to substantial justice between the parties. This does not mean that injustice should be done to others by improper joinder of parties and causes of action. We should maintain a liberal but orderly system of practice and procedure, a jungle system would work injustice and sooner or later our practice and procedure would be a tangled web and maze. C. S., 535. Clendenin v. Turner, 96 N. C., 421.

We have read the record carefully in reference to the contentions of the parties and the briefs of the respective parties charging each other that the action and cross-action are inequitable. We pass only on the demurrer, as we are dealing simply with allegations. The parties contend in their briefs that there is an attempt to repudiate on one side and unconscionable claim on the other; the “pot calling the kettle black,” but these are contentions of fact to be determined in the court below and not for us. The judgment of the court below is

Affirmed.