Colbert ex rel. Colbert v. Collins, 227 N.C. 395 (1947)

April 30, 1947 · Supreme Court of North Carolina
227 N.C. 395

W. B. COLBERT, Individually. and W. B. COLBERT, Next Friend of SHIRLEY COLBERT, Minor, v. MAURICE C. COLLINS and L. L. COLLINS, and L. L. COLLINS, Guardian Ad Litem of MAURICE C. COLLINS, Minor.

(Filed 30 April, 1947.)

Parties § 10c—

In this action, -involving a collision between two automobiles, the Superior Court granted defendants’ petition for the joinder of the owner and driver of a third car involved in the collision. Held: The order of the Superior Court must be affirmed, since if the additional parties defendant are proper parties, joinder was in the discretion of the court and not subject to review, or if such additional parties are necessary parties to. a complete determination of the controversy, the court was required 10 have them brought in as parties defendant.

Appeal by plaintiffs from Thompson, J., at September Term, 1946, of ESANKLIN.

*396Tbe action was commenced by tbe above named plaintiffs against tbe above named defendants to recover damages for negligence alleged to bave been caused by said defendants, and tbe defendants filed petition to tbe Superior Court of Franklin County for an order making Paul Ingram and Raymond Ingram parties defendant. Tbe allegations are to tbe effect that there was a collision between tbe cars of W. B. Colbert, driven by Sbirley Colbert, minor, and tbe car of L. L. Collins, driven by Maurice C. Collins, minor, in wbicb collision a third car of Raymond Ingram, driven by Paul Ingram, becáme involved. Tbe petition was denied by the Clerk of tbe Superior Court of Franklin County and an appeal was taken by tbe defendants to tbe judge bolding tbe courts, and upon sucb appeal tbe ruling of tbe Clerk was reversed by tbe judge by an order entered making said Paul Ingram and Raymond Ingram parties defendant. To sucb order tbe plaintiffs preserved exception and appealed to tbe Supreme Court, assigning errors.

John F. Matthews for plaintiffs, appellants.

No counsel for defendants, appellees.

Per Curiam.

Tbe only exceptive assignment of error contained in tbe record is to tbe signing of tbe judgment by tbe judge presiding. This assignment of error is untenable, since if tbe parties sought to be made parties defendant are proper parties tbe order was within tbe discretion of tbe court and not subject to review, or if, on tbe other band, such parties are necessary parties, without whose presence a complete determination of tbe controversy could not be bad, tbe court was required to have them brought in as parties defendant. McIntosh, Prac. & Proc., Sec. 259, p. 245. Tbe order entered, therefore, should be