Sellers v. Motors Ins. Corp. , 233 N.C. 590 ( 1951 )

65 S.E.2d 21 (1951) 233 N.C. 590

SELLERS
v.
MOTORS INS. CORP. et al.

No. 598.

Supreme Court of North Carolina.

May 9, 1951.

John D. Bellamy & Sons, Wilmington, Frink & Herring, Southport, for plaintiff appellee.

Murray G. James, Wilmington, Frank H. Kennedy, Charlotte, for defendant, Motors Ins. Co., appellant.

John M. Walker, Wilmington, for defendants, L. H. Knight, Sr., and L. H. Knight, Jr., trading and doing business as Motor Truck Sales & Service.

WINBORNE, Justice.

"All persons may be made defendants, jointly, severally, or in the alternative, who have, or claim, an interest in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved." G.S. § 1-69.

Also "Persons severally liable upon the same obligation * * * may all or any of them be included in the same action at the option of the plaintiff". G.S. § 1-71.

Moreover, the plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of the same transaction, or transaction connected with the same subject of action. G.S. § 1-123(1).

In the light of these statutes a demurrer should be sustained where there is a misjoinder of both parties and causes of action, and "the court is not authorized in such cases, to direct a severance of the respective causes of action for trial under the provisions of G.S. § 1-132", in the language of Denny, J., in Teague v. Siler City Oil Co., 232 N.C. 65, 59 S.E.2d 2, 3, citing in support thereof numerous cases.

In the present action the plaintiff and defendant Motors Insurance Corporation are the only parties to the controversy as to the item of $103.38. No allegation in respect thereto is made against the other defendants. Manifestly, therefore, as to this item there is a misjoinder of parties and of causes of action. See State v. Johnson, N.C., 64 S.E.2d 829.

And since the demurrer must be sustained and the action dismissed, it is unnecessary that other grounds on which the demurrers are based be considered.

Therefore, for the reasons stated, the order from which appeal is taken is reversed.