Carswell ex rel. Carswell v. Whisenant, 203 N.C. 674 (1932)

Dec. 14, 1932 · Supreme Court of North Carolina

203 N.C. 674

RALPH CARSWELL, By His Next Friend, W. A. CARSWELL, v. PHIFER WHISENANT, S. D. OLLIS, W. E. HEAVENER, and TOWN OF MORGANTON.

(Filed 14 December, 1932.)

Pleadings D b — Where there is a misjoinder of parties and causes of action a demurrer to the complaint will be sustained.

Where one of the defendants in a civil action demurs to the complaint and its demurrer is sustained, and on appeal it appears that there was a misjoinder of parties and causes of action as alleged in the complaint the judgment will be affirmed.

Appeal by plaintiff from Sinclair, J., at September Term, 1932, of Btoke.

Affirmed.

This is an action to recover of the defendants, jointly and severally, on the causes of action alleged in the complaint.

The action was tried on the demurrer to the complaint filed by the defendant, town of Morganton. The demurrer was sustained.

From judgment dismissing the action as to the defendant, town of Morganton, the plaintiff appealed to the Supreme Court.

Avery & Biddle for plaintiff.

Mull £ Patton for defendant.

Connor J.

Conceding without deciding that a cause of action is alleged in the complaint against the defendant, town of Morganton, for damages resulting from the failure of said defendant to discharge the duties imposed by law upon said defendant, while the plaintiff was confined in the county jail of Burke County, we are of opinion that nevertheless, the demurrer was properly sustained for the reason that there is a misjoinder in the complaint of both parties and causes of action. In such case, the decisions of this Court are to the effect that the demurrer should be sustained and the action dismissed. Sasser v. Bullard, 199 N. C., 562, 155 S. E., 248, and cases cited in the opinion in that case. The judgment is

Affirmed.