Childers v. Powell , 243 N.C. 711 ( 1956 )

92 S.E.2d 65 (1956) 243 N.C. 711

L. A. CHILDERS
v.
Carlies E. POWELL and wife, Florence Powell.

No. 311.

Supreme Court of North Carolina.

March 28, 1956.

John H. McMurray, Morganton, for plaintiff, appellant.

W. Harold Mitchell, Valdese, for petitioners, appellees.

BOBBITT, Justice.

G.S. § 1-73 provides, in part, that "when a complete determination of the controversy cannot be made without the presence of other parties, the court must cause them to be brought in."

The intervenors were not necessary parties to a complete determination of the controversy, if any, as between plaintiff and defendants; and, if not parties, no right or interest they have will be adversely affected by an adjudication of such controversy. Equitable Life Assurance Society of United States v. Basnight, 234 N.C. 347, 67 S.E.2d 390. It appears from the quoted recital that the court treated the intervenors as necessary parties. If so, the court's action was erroneous.

The intervenors were proper parties; and, ordinarily, whether to permit them to intervene would be determinable by the court in its discretion. G.S. § 1-73; Equitable Life Assurance Society of United States v. Basnight, supra.

Here defendants failed to file answer, thus ignoring the action. There is no issue or controversy subsisting as between plaintiff and defendants. Whatever judgment may be entered will be by default, unaffected by any allegations the intervenors may make. It will be determinative only as between plaintiff and defendants.

In short, there is no controversy in which appellees may intervene. Under the circumstances disclosed, the controversy as between intervenors and plaintiff should be litigated in and determined by independent action between these parties rather than by attempting to engraft a new and live controversy on a moribund action.

Appellees' brief advises us that surplus funds arising from the foreclosure of a prior deed of trust have been deposited with the Clerk of the Superior Court, presumably in accordance with G.S. § 45-21.-31(b)(4). If such be the case, G.S. § 45-21.32 would seem to prescribe the appropriate remedy for the determination of the respective rights of plaintiff and intervenors in said funds. Decision here does not preclude the intervenors from establishing in such special proceeding or by other appropriate independent action all rights they seek to establish by intervention here.

Ordinarily, an appeal does not lie to the Supreme Court from an interlocutory order, unless such interlocutory order deprives the appellant of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. § 1-277; City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669; City of Shelby v. Lackey, 235 N.C. 343, 69 S.E.2d 607. Unless intervenors are permitted to come in by pleadings necessary and appropriate to an independent action, there is no subsisting controversy herein. Hence, the stated salutary rule, the primary purpose of which is to eliminate interlocutory appeals that do not involve final disposition of the entire cause, has no application under the peculiar circumstances here disclosed.

The order of the court below is

Reversed.