Burton v. Dixon , 259 N.C. 473 ( 1963 )

131 S.E.2d 27 (1963) 259 N.C. 473

Myrtle BURTON
v.
A.L. DIXON, Executor of the Will of C.P. Wilson, Original Defendant, and K. D. Burton, Additional Defendant.

No. 389.

Supreme Court of North Carolina.

May 22, 1963.

Everett, Everett & Everett, Durham, and T. Jule Warren, Roxboro, for plaintiff.

R. B. Dawes, Sr., and R. B. Dawes, Jr., Roxboro, for original defendant.

MOORE, Justice.

There are two questions for decision: (1) Does the counterclaim state a cause of action? (2) If so, is there a misjoinder of parties and causes?

Accepting the factual allegations of the counterclaim as true and construing them liberally, as we must in passing upon the demurrer (General Tire Rubber Co. v. Distributors, Inc., 251 N.C. 406, 410, 111 S.E.2d 614), we are of the opinion that the facts alleged are sufficient to constitute a cause of action for damages arising from a conspiracy to take possession of C.P. Wilson's property and convert it to the use of plaintiff and her husband.

A conspiracy is generally defined as an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful manner. Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783. A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy, rather than the conspiracy itself. The combination or conspiracy may be of little consequence except as bearing upon rules of evidence or the persons liable. If a conspiracy is formed and an overt act, causing damage, is committed by any one or more of the conspirators in furtherance of the conspiracy, all of the conspirators are liable. All may be joined as parties defendant in an action for damages caused by the wrongful act, but it is not necessary that all be joined; an action may be maintained against only one. The liability of the conspirators is joint and several. Burns v. Gulf Oil Corporation, 246 N.C. 266, 98 S.E.2d 339; Muse v. Morrison, supra.

The counterclaim does not refer to plaintiff and her husband as conspirators; it designates them as "co-partners" and "joint venturers." However, it is not the titular designation that controls; the nature of the cause of action is determined by the facts alleged. It is alleged that plaintiff and her husband, acting together, invited C.P. Wilson to live with them for the purpose of gaining control of his assets and converting them to their own use, they persuaded C.P. Wilson to execute to the husband a general power of attorney and by means thereof sold timber and collected rents belonging to C.P. Wilson, and they converted the proceeds of the timber and rents to their own use. This is a sufficient statement of a cause of action for conspiracy, and according to the facts pleaded both conspirators committed acts pursuant to the conspiracy.

"Generally speaking, any person who is capable in law of being sued and who takes part in a conspiracy may be held civilly liable as a conspirator. * * (A)t common law an action for conspiracy cannot be maintained against a husband and wife alone, since they are considered to be one person. * * * Since the gist of the modern action, however, is damage, and not the conspiracy, an action for conspiracy may now be maintained against a husband and wife alone." 11 Am.Jur., Conspiracy, s. 47, pp. 579-580; Jones v. Monson, 137 Wis. 478, 119 N.W. 179 (1909). It is the law in Virginia that a married woman may "sue and be sued in the same manner and with the same consequences as if she were unmarried." Code Va., § 55-36; Furey v. Furey, 193 Va. 727, 71 S.E.2d 191 (1952). The same is true in North Carolina. G.S. § 52-10; G.S. § 52-15.

This brings us to the question whether the defendant executor may assert his action for conspiracy as a counterclaim in plaintiff's action. It may be maintained as a counterclaim if it is a cause of action in favor of defendant and against plaintiff and in such action a several judgment may be had between them, and if the cause of action (counterclaim) arose out of the contract or transaction set forth in the complaint as the foundation for plaintiff's claim or is connected with the subject of the action. G.S. § 1-137.

"A several judgment may be had on a counterclaim within the purview of the statute when judgment may be rendered for the plaintiff, or all of the plaintiffs, if more than one, or for the defendants, if more than one, accordingly as the court may decide in favor of the one side or the other." Garrett v. Rose, 236 N.C. 299, 305, 72 S.E.2d 843, 847; John L. Roper Lumber Co. v. Wallace, 93 N.C. 22. It is apparent that the counterclaim in the instant action meets this test. On the record the husband, K. D. Burton, is not presently a party. But, as stated above, conspirators are jointly and severally liable. The test is met either with or without the husband as a party.

As to whether the cause of action stated in the counterclaim arose out of the transaction set forth in the complaint or is connected with the subject of the action, the following discussion in Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614, sets out the guiding principles:

"As the purpose of the two sections, G.S. §§ 1-123, subd. 1, 1-137, subd. 1, is to authorize the litigation of all questions arising out of any one transaction, or series of transactions concerning the same subject matter, in one and the same action, and not to permit multifariousness, it must appear that there is but one subject of controversy. (Citing authorities)

"While the statute is designed ``to enable parties litigant to settle wellnigh any and every phase of a given controversy in one and the same action', Smith v. French, supra, [141 N.C. 1, 53 S.E. 437] Singer Sewing Machine Co. v. Burger, 181 N.C. 241, 107 S.E. 14, that a connected story may be told is not alone sufficient. Pressley v. Great Atlantic & Pacific Tea Co., supra [226 N.C. 518, 39 S.E. 2d 382]. Nor is mere historical sequence—'one thing led to another' order of occurrences—all that is required. Manufacturers & Jobbers Finance Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849 * * *.

"The cross action must have such relation to the plaintiffs' claim that the adjustment of both is necessary to a full and final determination of the controversy. Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555. This means that it must be so interwoven in plaintiffs' cause of action that a full and complete story as to the one cannot be told without relating the essential facts as to the other.

"``The "subject of the action" means, in this connection, the thing in respect to which the plaintiff's right of action is asserted, * * *.' To be connected with the subject of action the ``connection of the case asserted in the counterclaim and the subject of the action must be immediate and direct, and presumably contemplated by the parties.' Phillips, Code Pleading, 2d Ed., sec. 377, p. 423.

"``In respect to the phrase "connected with" the subject of the action, one rule may be regarded as settled by the decisions, and it is recommended by its good sense, and its convenience in practice. The connection must be immediate and direct. * * * the connection must be such that the parties could be supposed to have foreseen and contemplated it in their mutual acts; in other words, that the parties must be assumed to have had this connection and its consequences in view when they dealt with each other.' Pomeroy, Code Remedies, 5th Ed., sec. 652, p. 1059, sec. 670, p. 1085; Schnepp v. Richardson, supra."

If it arises out of the same transaction or is connected with the subject of the action, a tort claim may be pleaded as a counterclaim against a contract claim. King v. Libbey, 253 N.C. 188, 116 S.E.2d 339; Hancammon v. Carr, supra [222 N.C. 228, 22 S.E.2d 555].

"In litigation involving the assets of an estate even though complicated as to parties and involving multiple demands for relief, objection for misjoinder of causes and parties has an excellent chance of being overruled." 25 N.C.L.Rev. 22.

It seems clear to us that defendant's counterclaim is connected with the subject of plaintiff's action. The specific subject of the action is the contract between plaintiff and her father, and the court's inquiry is whether there was a breach of the contract, and, if so, in what amount the father's estate is indebted to plaintiff by reason thereof. The promised care of the father and attention to his needs may well have included the transaction of some business in his behalf, such as the sale of timber and collection of rents. But, if not, it was certainly within the contemplation of the parties to the contract that the father would, in the performance on his part, take into consideration the conversion of his assets by plaintiff. Indeed, this may explain the alleged failure of the father to make the promised provision for his daughter in his will. The adjustment of plaintiff's claim and defendant's counterclaim is necessary to a full and final determination of the controversy.

As stated above, K. D. Burton is not presently a party to the action. He is a resident of Virginia. "As a general rule a person over whom the court has no jurisdiction cannot be ordered to be brought in as a proper or necessary party to the action * * *." 67 C.J.S. Parties § 74(k), pp. 1042-1043. Jurisdiction of a party in an action in personam, as is the instant action, can only be acquired by personal service of process within the territorial jurisdiction of the court, or by acceptance of service, or by general appearance, active or constructive. Warlick v. H. P. Reynolds & Co., 151 N.C. 606, 66 S.E. 657. In an action in personam constructive service (by publication, or personal service outside the State) upon a nonresident is ineffectual for any purpose. Stevens v. Cecil, 214 N.C. 217, 199 S.E. 161; McIntosh: North Carolina Practice and Procedure (2d ed. 1956), s. 191, p. 479.

If jurisdiction of K. D. Burton is lawfully acquired, he is a proper, and perhaps a necessary, party. Casaretto v. De Lucchi, 176 Cal.App.2d 800, 174 P.2d 328 (1946), is in point. This case involved an action to recover the balance due on meat sold by plaintiff to defendants. Defendants set up a counterclaim alleging they had been overcharged and that plaintiff and one Schroeter had conspired to overcharge them. Schroeter was made a party. Demurrer to the counterclaim was overruled. The jury found for defendants. The appellate court affirmed, holding that there was not a misjoinder of parties and causes, that Schroeter was properly made a party, and that his presence was necessary to a complete determination of the controversy. See also: Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir. 1944); Liberty Lumber Co. v. Silas, 181 Ga. 774, 184 S.E. 286 (Ga.1936); George W. Woods, Inc. v. Althauser, 212 A.D. 618, 209 N.Y.S. 416 (1925).

The judgment below is

Affirmed.