Wilkinson v. Gilchrist, 27 N.C. 228, 5 Ired. 228 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 228, 5 Ired. 228

DANIEL WILKINSON & AL. vs. JOHN GILCHRIST & AL.

All of the plaintiffs, or all oí the defendants, must join in an appeal from an inferior court, or the appeal will be dismissed.

Where there are several plaintiffs in an action of tort, and after the pleadings are made up, one of the plaintiffs comes into court and enters a rebrmrit, the proper course for the court is to permit his name to he stricken from the writ and declaration, and suffer the other plaintiffs to proceed with the suit. In such a ease, the court should not suffer the defendant to amend his pleadings hy pleading in abatement the want oí the proper plaintiffs.

If one of the plaintiffs releases to the defendant, the defendant may plead this release in bar since the last continuance, and in England, the other plaintiffs may reply per frcmdem, and have this issue fried at law. But in our State, the practice has been to leave the parties to their remedy in Equity.

Appeal from the Superior Court of Law of Richmond County, at the Fall Term, 1844, his Honor Judge Baxley presiding.

This was an action of trespass quare clausum fregit, brought by nine persons as plaintiffs, styling themselves, “Elders and Trustees of the Church of Centre Congregation.” The suit was returnable to Fall Term, T843. At the Fall Term, 1844, Daniel McKinnon, one of the plaintiffs, came into court in proper person, and prayed leave to enter a re-traxit., and moved to dismiss the suit, as having been instituted without his knowledge, and against his will, and thereupon directed the said suit to be dismissed. Daniel Wilkinson, and all the plaintiffs, except McKinnon, objected to the motion of McKinnon, and opposed the dismission of the suit, claiming title to the “ locus in quo” under a deed, which they offered to produce, and alleging that they expected to shew possession of the “ locus in quo" by proving that it was embraced in the boundaries of the said deed ; but the court permitted the said Daniel McKinnon to enter a retraxit, and ordered the suit to be dismissed. The other plaintiffs prayed an appeal from this order to the Supreme Court, which prayer for an appeal was opposed by the said McKinnon, he dissenting therefrom and protesting against it. The court, yielding to the earnest entreaty of the other plaintiffs, permitted the appeal to be taken ; Gilchrist and McKay, the defendants in the suit, opposing the said appeal, and insisting that there was nothing to appeal from; that the suit, to which they were defendants, could not be carried up by appeal in ■ the way proposed.

¡Strange for the plaintiffs.

No counsel in this court for the defendants.

Daniel, J.

This court has heretofore decided, that all the plaintiffs or defendants in a suit must assent, before an appeal can be taken from the order, judgment or decree of an inferior court. If one or more of the parties, plaintiffs or defendants dissent, an appeal cannot be taken by the others. The reason for this rule of law will be found in Gilliam v. Hicks, 4 Dev. 217. We have no jurisdiction over this case, and therefore we must dismiss the appeal out of this court.

JBut vve will say that we think the judge erred, in extending the effect of McKinnon’s retraxit to all the plaintiffs against their will. It does not appear that McKinnon ever acted as a trustee to the said church; he might therefore have released defendants, which release they might have pleaded since the last continuance, in bar of the action. Emery v. Mucklaw, 10 Bingh. Rep. 23. In England, to such a plea, the plaintiff might reply per fraudem, and try it at law, (Ibid. 23;) but in this State the practice always has been to leave the parties to a court of equity, to decide whether such a release was fraudulently obtained. But the more proper course on this motion, it seems to us, would have been to permit McKinnon to strike his name out of the writ and declaration; and then, if the other plaintiffs could have gone on in the action without him, they should have been permitted to do so. In this case, it is probable that the other plaintiffs might have proceeded in the cause, without McKinnon ; as it is not to be presumed that the court would have permitted them to have pleaded in abatement that McKennon, one of the tenants in common of the land, was not made a party plaintiff, as by his retraxit he was forever barred from bringing ano ther action for the same cause; 2 Arch. Prac. 250; and it being an action in tort, the defendants could not have taken advantage of the nori-joinder of McKinnon on the general issue. However that may be, we must dissmiss the appeal from this court for the reason first mentioned.

Pee, Curiam, Appeal dismissed.