Byrd v. . Byrd , 117 N.C. 523 ( 1895 )

His honor made the following order:

"The heirs at law of Charles Byrd, the intestate of defendant, administrator, having asked leave of court to make themselves parties defendant, and the court having ordered that the heirs be allowed to make themselves parties defendant on condition that they do not set up as a defense the statute of limitations, and the said heirs having refused to become parties on such condition: It is ordered that the request of said heirs be not granted, and that they shall not be made parties defendant to this action."

To this refusal the said Burton and J. C. Byrd excepted and appealed. This is an action for the recovery of money alleged to be due by account. The defendant, C. H. Byrd, is the administrator of Charles Byrd, and the appellants are two of the heirs and next of kin to said Charles. At the trial term they filed an affidavit in which they alleged that the claim sued on is barred by the statute of limitations; that defendant had not pleaded this defense, and alleged fraud and collusion between plaintiffs and defendant, and asked to be allowed to make themselves parties defendant and that they be allowed to file an answer and defend the action.

To this affidavit and motion to be made parties the defendant, without admitting affiants' right to be made parties, agreed that they might be so made, as they had alleged fraud and collusion with (525) plaintiffs, and that they might put in any defense they pleased except the statute of limitations; that this he would not agree they should do, as he knew the claim sued on was a just debt and should be paid.

Upon this statement of the defendant administrator, the court stated to affiants that they might make themselves defendants and make any defense they had to the claim except the statute of limitations; the court would not allow them to plead the statute of limitations and defend on that ground. Affiants declined to make themselves parties upon the terms proposed by the administrator and adopted and proposed by the court as above set forth, and appealed to this Court.

We can see no ground upon which they can maintain this appeal. Though they were heirs at law and next of kin to the intestate, Charles, they were strangers to this action and had no more right to make themselves parties than they would have had if the intestate, Charles, had been living and had been sued for this claim instead of his personal representative. The Code, sec. 1507; Spier v. James, 94 N.C. 417. They had no interest in the subject-matter of this action, and therefore no right to demand that they should be made parties. Colgrove v. Koonce, 76 N.C. 363; Wade v.Saunders, 70 N.C. 270.

To have entitled them to this right, they must not only have been interested in the subject-matter, but jointly interested in the subject of litigation, so as to make them necessary parties to a final determination. Jones v. Asheville, 116 N.C. 817; Lytle v. Burgin, 82 N.C. 301. In actions of ejectment against a tenant the landlord may be allowed to make himself a party and defend the possession of his tenant, as he is the principal party interested. Bryan v. Kinlaw, 90 N.C. 337, and many other cases. But these cases do not conflict (526) with the reason or the rule announced in Colgrove v. Koonce, supra, and that line of cases. But if affiants had made themselves parties, as the time for pleading allowed by law had passed, they had no right to plead without the permission of the court. And the ruling as to this was a matter of discretion, and this Court has no right to review the same. Turner v. Shuffler, 108 N.C. 642. But, as affiants had no right to make themselves parties, they had no right to appeal. And their appeal must be dismissed.

Appeal dismissed.

Cited: Best v. Best, 161 N.C. 516; Barnes v. Fort, 169 N.C. 435;McNair v. Cooper, 174 N.C. 567.