Garrett v. Rose , 236 N.C. 299 ( 1952 )

72 S.E.2d 843 (1952) 236 N.C. 299

GARRETT
v.
ROSE.

No. 108.

Supreme Court of North Carolina.

October 15, 1952.

Allsbrook & Benton, Roanoke Rapids, and Gardner, Connor & Lee, Wilson, for plaintiff-appellee.

Bunn & Bunn, Rocky Mount, Lucas & Rand, Wilson, and Battle, Winslow & Merrell, Rocky Mount, for defendant and J. Brian Scott, ancillary administrator c. t. a., appellants.

ERVIN, Justice.

The defendant undertakes to raise these questions on his appeal:

1. Did the judge err in denying his motion for judgment on the pleadings?

2. Did the judge err in striking from the answer the allegations concerning the contract of the grandchildren of David Williams for the division of the consideration to be paid by A. P. Petway for the remainder interests in the farm?

The first of these questions is not properly before us for the very simple reason that an immediate appeal does not lie from the denial of a motion for judgment on the pleadings. Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384. This rule is bottomed on sound reason. It is designed to make effective the constitutional guaranty that justice shall be administered without delay. N.C.Const. art. I, § 35; Veazy v. City of Durham, 231 N.C. 357, 57 S.E.2d 377. If the law permitted an immediate appeal from the denial of a motion for judgment on the pleadings, any litigant could delay the trial of any action on its merits by the simple expedient of moving for judgment on the pleadings and giving notice of appeal from an adverse ruling on his motion. The rule does not preclude a litigant from obtaining a judicial review of the propriety of the denial of his motion for judgment on the pleadings in case it becomes necessary. He may preserve an exception to the ruling, and have it considered on an appeal from a final judgment adverse to him. Erickson v. Starling, supra.

We would be compelled to affirm the ruling of the judge denying the motion for judgment on the pleadings if such ruling were subject to review at this time. The able counsel who represent the defendant have succumbed to the temptation which lies in constant wait for loyal and optimistic advocates, and causes its victims to see in denials of their adversaries admissions of the justice of their client's cause. The record does not support their contention that the reply admits all of the material allegations of the answer. While it does concede the execution of certain of the instruments in the defendant's chain of title, the reply denies the crucial averments of the answer relating to the title and right of possession of the defendant, and leaves unimpaired the allegations of the complaint respecting the title and right of possession of the plaintiff.

The statute codified as G.S. § 1-153 specifies that "If irrelevant * * * matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby". The judge acted under this statutory provision when he allowed the motion of the plaintiff to strike from the answer the allegations that on November 3, 1916, the plaintiff entered into a contract under seal with Margaret Barrow, Frank W. Garrett, Paul Garrett, Alice W. Pender, Dora Vinson, and R. Lloyd Williams whereby the contracting parties covenanted, in substance, that the $15,500 to be paid by A. P. Petway for the remainder interests in the farm should belong to all seven of them, share and share alike, instead of going to such of them only as should be living at the death of Frances Louisa Harrison. The question of the correctness of this ruling is properly before us because an immediate appeal lies from the granting of a motion to strike out parts of a pleading. Citizens' Savings & Loan Co. v. Warren, 204 N.C. 50, 167 S.E. 494; Ellis v. Ellis, 198 N.C. 767, 153 S.E. 449.

If allegations in a pleading are relevant upon any admissible theory, they ought not to be stricken out on motion. The test of relevancy of allegations sought to be stricken from an answer is whether such allegations, either in themselves or in connection with other averments, tend to state a defense or a counterclaim. If they do, they are not irrelevant, and ought not to be expunged. Hill v. Stansbury, 221 N.C. 339, 20 S.E.2d 308; Ederer v. Froberg, 115 Ind.App. 414, 59 N.E.2d 595; 71 C.J.S., Pleading, § 465.

Under the first subdivision of the statute embodied in G.S. § 1-137, a cause of action may be pleaded as a counterclaim in an action when it satisfies this twofold requirement:

1. The cause of action must be one existing in favor of a defendant and against a plaintiff between whom a several judgment may be had in the action.

2. The cause of action must either arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or be connected with the subject of the action.

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 defendant, or all of the defendants, if more than one, accordingly as the court may decide in favor of the one side or the other. Roper Lumber Co. v. Wallace, 93 N.C. 22. The term "subject of the action," as used in the statute, denotes the thing in respect to which the plaintiff's right of action is asserted, such as the wrongful act for which damage is sought, or the contract which is broken, or the threatened act which is sought to be restrained, or the property which is sought to be recovered. Smith v. Gibbons, 230 N.C. 600, 54 S.E.2d 924; Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614; Lassiter v. Norfolk & C. Railroad Co., 136 N.C. 89, 48 S.E. 642, 1 Ann.Cas. 456.

When the allegations relating to the contract of November 3, 1916, and the other averments of the "further defense" of the defendant are combined, they state, in substance, that the defendant owns the farm in fee simple, subject, however, to the unpaid consideration for the remainder interests amounting to $15,500 plus accrued interest from December 16, 1950, which constitutes a charge upon the farm, and which the defendant must pay in equal shares to the plaintiff and the personal representatives of the other six contracting parties, who are now dead, in order to protect his title to the premises.

These facts, if true, show that the claim of the plaintiff to the farm is not good, and for that reason are a defense to the complaint. These facts, if true, likewise constitute a cause of action in favor of the defendant and against the plaintiff, warranting a judgment declaring that the defendant owns the farm in fee subject to the charge for the unpaid consideration with accrued interest, that the plaintiff has no interest in the farm except a charge for one-seventh of the unpaid consideration with accrued interest, and that the defendant is entitled to remove the charge from the farm by paying the unpaid consideration with accrued interest in equal parts to the plaintiff and the personal representatives of the other six contracting parties, who have died. Moreover, the first subdivision of G.S. § 1-137 permits the defendant to plead his cause of action against the plaintiff as a counterclaim in the instant action. Such cause of action is connected with the subject of this action, i. e., the farm, and a several judgment may be had between the plaintiff and the defendant in respect to it in this action. McLean v. McDonald, 173 N.C. 429, 92 S.E. 148; Yellowday v. Perkinson, 167 N.C. 144, 83 S.E. 341; Roper Lumber Co. v. Wallace, supra.

Since the allegations relating to the contract of November 3, 1916, in combination with other averments, state both a defense and a counterclaim, they are not irrelevant, and the judge erred in striking them from the answer.

This brings us to the appeal of J. Brian Scott, ancillary administrator with the will annexed, which presents the question whether the judge erred in denying his application for leave to intervene in the action as a party defendant in his dual capacity as personal representative of Alice W. Pender and R. Lloyd Williams for the purpose of asserting a claim "for the benefit of each of his * * * estates" to oneseventh of the $15,500 allegedly constituting a charge on the farm.

When the decision in the recent case of Scott v. Jordan, 235 N.C. 244, 69 S.E.2d 557, was handed down, we pointed out that under the law of the land clause enshrined in Article I, Section 17, of the North Carolina Constitution a judgment is not binding on those who are not parties to the action in which the judgment is rendered, and suggested that judges and lawyers would do well to ponder the implications of that constitutional principle when they consider who should be made parties to litigation.

The legislature undoubtedly pondered these implications when it inserted these words in the statute now codified as G.S. § 1-73: "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." Under this statutory provision, a person who is a necessary party has an absolute right to intervene in a pending action, and the court commits error when it refuses to permit him to exercise such right. Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554; Temple v. Eades Hay Co., 184 N.C. 239, 114 S.E. 162.

A person is a necessary party to an action when he is so vitally interested in the controversy involved in the action that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence as a party. Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Jones v. Griggs, 219 N.C. 700, 14 S.E.2d 836; 39 Am.Jur., Parties, section 5; 67 C.J.S., Parties, § 1.

The controversy involved in the case at bar is whether the plaintiff owns the farm in fee simple absolute, or whether the defendant owns the farm in fee simple, subject to a charge of $15,500 with interest from December 16, 1950, payable in equal shares to the plaintiff and the personal representatives of Margaret Barrow, Frank W. Garrett, Paul Garrett, Alice W. Pender, Dora Vinson, and R. Lloyd Williams. It is manifest that the personal representatives of these six decedents are so vitally interested in this controversy that a valid judgment cannot be rendered in this action completely and finally determining the controversy without their presence as parties. This being true, they are necessary parties to the action.

It follows that the judge erred in denying the application of J. Brian Scott, ancillary administrator with the will annexed of the estates of Alice W. Pender and R. Lloyd Williams, for leave to intervene. It also follows that the judge should have had the personal representatives of Margaret Barrow, Frank W. Garrett, Paul Garrett, and Dora Vinson brought in. Riddick v. Davis, 220 N.C. 120, 16 S.E.2d 662; Barbee v. Cannady, 191 N.C. 529, 132 S.E. 572; McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445; Burnett v. Lyman, 141 N.C. 500, 54 S.E. 412; Parton v. Allison, 111 N.C. 429, 16 S.E. 415; Kornegay v. Farmers' & Merchants' Steamboat Co., 107 N.C. 115, 12 S.E. 123.

For the reasons given, the order striking from the answer the allegations relating to the contract of November 3, 1916, and the order denying J. Brian Scott, ancillary administrator with the will annexed, leave to intervene are reversed.