Williams v. Hunter , 257 N.C. 754 ( 1962 )

127 S.E.2d 546 (1962) 257 N.C. 754

James WILLIAMS
v.
Harvey B. HUNTER, t/a Harvey B. Hunter Dairies and Donald Alexander Ferguson.

No. 167.

Supreme Court of North Carolina.

October 10, 1962.

Mullen, Holland & Cooke by Philip v. Harrell, Gastonia, for additional defendant-appellant.

Ernest R. Warren, Julius T. Sanders, and Carl J. Stewart, Jr., Gastonia, for original defendants-appellees.

RODMAN, Justice.

Appellant challenges the right of Judge McConnell to act on the motion to strike because, as he contends, the allowance of the motion would constitute a reversal of Judge Sharp's order. This position would be sound if the defendants assigned some reason for removing the pleading from the file other than a failure to state a defense. This is not what they seek to accomplish. It is apparent the "Motion to Strike" is intended to test the legal sufficiency of the pleading. The way to raise that question is by demurrer. Turner v. Gastonia City Board of Education, 250 N.C. 456, 109 S.E.2d 211; Rhodes v. Asheville, 229 N.C. 355, 49 S.E.2d 638. The fragrance of the rose is not destroyed by calling it a weed. Nor may what is in fact a demurrer gain strength or lose vitality by designating it as a motion to strike. Where a "Motion to Strike" challenges the legal efficacy of a pleading, it is and will be treated as a demurrer. Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554; Etheridge v. Carolina Power & Light Co., 249 N.C. 367, 106 S.E.2d 560.

If this were in fact an appeal from an order merely striking portions of a pleading, it would, under Rule 4(a) (2), 242 N.C. 766, be necessary to dismiss the appeal.

The amendment alleges a prior adjudication of the rights of Barnes and Ferguson in a court having jurisdiction of the parties and the cause of action. If the plea be established, it defeats Ferguson's right to relitigate any question then in controversy. The negligence of each driver, the parties to that action, was necessarily in issue. The adjudication then made is binding on the parties. Hill v. Edwards, 255 N.C. 615, 122 S.E.2d 383; Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 119 S.E.2d 910; Crain & Denbo, Inc. v. Harris & Harris Construction Co., 252 N.C. 836, 114 S.E. 2d 809; Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Allen v. Salley, 179 N.C. 147, 101 S.E. 545.

The action set up by Barnes as a defense to the claim for contribution is entitled "Daniel L. Barnes v. Harvey B. Hunter Dairies, Inc. and Donald Alexander Ferguson." The certified copy of the record in that action pleaded as an estoppel does not disclose how, if at all, it has terminated as to defendant Harvey B. Hunter Dairies, Inc. Nor does it appear that Harvey B. Hunter individually was a party to or in any way participated in that action. Barnes does not allege facts against Harvey B. Hunter trading as Harvey B. Hunter Dairies which would bring him in the class bound by the judgment under the doctrine applied in Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492. The facts pleaded in the amendment are not sufficient to estop Harvey B. Hunter from claiming contribution. Nonetheless, he has elected to act jointly with a party who is estopped. Since he has deliberately placed himself in the sea with Ferguson, they must, as Avery, J., said in Conant v. Barnard, 103 N.C. 315, 9 S.E. 575 "sink or swim together."

Since the demurrer is bad as to Ferguson, it is bad as to both. Some of the subsequent cases applying the rule announced in the Conant case are collected in Paul v. Dixon, 249 N.C. 621, 107 S.E.2d 141.

Reversed.

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