BANNISTER & SONS, INC. v. Williams , 261 N.C. 586 ( 1964 )

135 S.E.2d 572 (1964) 261 N.C. 586

BANNISTER & SONS, INC. and Moultrie Livestock Company
v.
Jacob C. WILLIAMS, d/b/a Washington Hog Market and Bank of Washington.
H. F. BURCH and C. B. Mayer, d/b/a Milan Stock Yard
v.
Jacob C. WILLIAMS, d/b/a Washington Hog Market and Bank of Washington.
John W. SALTER, Jr., and McTyler Salter, d/b/a Dawson Livestock Co.
v.
Jacob C. WILLIAMS, d/b/a Washington Hog Market and Bank of Washington.
TURNER COUNTY STOCK YARDS, INC.
v.
Jacob C. WILLIAMS, d/b/a Washington Hog Market and Bank of Washington.
H. T. TROUP and J. W. Hudson Co., Ptrs., d/b/a Hudson-Troup Auctions
v.
Jacob C. WILLIAMS, d/b/a Washington Hog Market and Bank of Washington.

No. 25.

Supreme Court of North Carolina.

April 8, 1964.

Marshall Ewing, Douglas, Ga., J. C. McDonald, Fitzgerald, Ga., and Bryan Grimes, Washington, for plaintiff appellants.

Rodman & Rodman, Washington, for Bank of Washington, defendant appellee.

SHARP, Justice.

In each complaint the plaintiff has joined a cause of action in contract for the purchase price of goods sold the defendant Williams with a cause of action against the defendant Bank for its alleged negligence in handling the draft drawn by plaintiff on Williams for the price of the goods. They have, therefore, clearly attempted to set up separate and distinct causes of action which do not affect all the defendants as contemplated by G.S. § 1-123. Williams v. Gooch, 206 N.C. 330, 173 S.E. 342. The Bank was not a party to Williams' purchase of the hogs from plaintiffs, and upon no theory can it be held jointly liable with plaintiff for their purchase price. On the other hand, if it be conceded that Williams owes each plaintiff the drafts in suit, their actions against the Bank for its negligence in failing to collect the drafts in no way affect him. Moreover the measure of damages in the two actions is not the same. Of course, if it should be determined that Williams never purchased any hogs from the plaintiffs and owed them nothing, plaintiffs could not recover from the Bank for its failure to collect a nonexisting obligation; but the fact that Williams might become liable to the Bank should one of the plaintiffs recover against it for its negligence in handling the draft does not affect the question here.

Furthermore, the plaintiffs have comingled their causes of action in one statement in the complaint instead of stating them separately as required by G.S. § 1-123 and N.C.Sup.Ct.R. 20(2). Tart v. Byrne, 243 N.C. 409, 90 S.E.2d 692; Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104.

Under our practice "a misjoinder of parties and causes of action constitutes a fatal defect. A severance is not permissible." Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295; Moore County v. Burns, 224 N.C. 700, 32 S.E.2d 225. In other words, "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." The action must be dismissed. Gaines v. Atlas Plywood Corporation, 253 N.C. 191, 116 S.E.2d 427; Tart v. Byrne, supra; Sellers v. Motors Insurance Corp., 233 N.C. 590, 65 S.E.2d 21; Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345.

The ruling of the court below sustaining the Bank's demurrer and dismissing the action as to the Bank of Washington must be upheld. However, the judge also dismissed the actions as to Williams and this was error. Williams elected to answer rather than to demur. By so doing he waived his right to demur for a misjoinder of parties and causes. G.S. § 1-134; Teague v. Siler City Oil Co., 232 N.C. 65, 59 S.E.2d 2.

The plaintiffs may move in the Superior Court to amend their respective complaints in order to eliminate the irrelevant allegations as to the Bank. In the absence of such a motion, the court can, ex mero motu, require the proper amendments. Bowling v. Burton, 101 N.C. 176, 7 S.E. 701, 2 L.R.A. 285; 41 Am.Jur., Pleading § 290.

As to defendant Bank of Washington

Affirmed.

As to defendant Jacob C. Williams

Reversed.

RODMAN, J., took no part in the consideration or decision of this case.