Emry v. . Parker

AVERY, J., dissenting. At the instance of the plaintiffs a notice was issued to J. J. Daniel to show cause why he should not be made a party defendant, and said Daniel making no resistance, an order to that effect was made by his Honor. From this order the original defendants appealed, and the only question to be considered is whether the appeal can be entertained at this stage of the action.

An appeal cannot be taken from an order of the Superior Court which does not determine the action, and which does not deprive the appellant of any substantial right which he might lose if the order is not reviewed before final judgment. Under such circumstances, the party may have his exception entered of record, and, if necessary, may have it considered by the Supreme Court on appeal after the final judgment. Clementv. Foster, 99 N.C. 255; Welch v. Kinsland, 93 N.C. 281; Haileyv. Gray, ibid., 195. Tested by the foregoing rule, it is entirely clear that the appeal was prematurely taken, as it is well settled by this Court, in the language of Pearson, C. J., that "a misjoinder of one (262) who is not a necessary party is surplusage, . . . as to the unnecessary parties plaintiff, it is their own concern to be made liable to costs; as to the unnecessary parties made defendants, they are allowed to disclaim and have judgment for costs." Green v. Green,69 N.C. 294; Righton v. Pruden, 73 N.C. 61; Tuck v. Hunt, ibid., 24. Daniel does not object to being joined as a defendant, and if he is an unnecessary party it is "surplusage," and if he is an "improper" party there is nothing whatever in the record which discloses that his joinder can in the least affect any substantial right of his codefendants. Whether the making, or refusal to make, additional parties, may not in some cases affect a substantial right, and therefore become the subject of immediate appeal, are questions not presented in the record. These questions are discussed in previous decisions of this Court, and need not now be considered by us.

APPEAL DISMISSED.