Prewitt ex rel. Prewitt v. Dover

PER Curiam.

Under our Rule 4(a), 254 N.C. 785, this Court will not entertain an appeal (1) “(f) rom an order overruling a demurrer except when the demurrer is interposed as a matter of right for misjoinder of parties and causes of action,” or (2) “(f)rom an order striking or denying a motioii to strike allegations contained in pleadings.” Defendants did not petition for certiorari.

Obviously, the order of Judge Froneberger denying defendants’ motion to strike, and the order of Judge Riddle allowing plaintiff’s motion to strike, are not appealable. Defendants, treating the order overruling their demurrer as appealable as a matter of right, attempt to bring forward, incident to such appeal, assignments of error relating to adverse rulings on the motions to strike.

Defendants assert, in their brief as in their demurrer, there is a misjoinder of parties and causes of action. However, their contention, in brief and on oral argument, is that the complaint improperly joins, without separate statement thereof, two causes of action. This contention is without merit. The complaint alleges one cause of action for all damages plaintiff sustained on account of the negligence of defendants as the result of a single automobile collision.

Under plaintiff’s allegations, actionable negligence of Dover is a prerequisite to plaintiff’s right to recover against the corporate defendant whether its asserted liability is based on respondeat superior or on negligence in entrusting the operation of its car to Dover.

Whatever the ground of the corporate defendant’s liability, if any, for the actionable negligence of Dover, there is no basis whatever for contending there is a misjoinder of parties. If it were (but is not) conceded the complaint alleges two causes of action, the controversy in each would be between plaintiff on the one hand and both defendants on the other hand. The assertion there is a mis-joinder of parties and causes of action is without substance. The mere fact that the demurrer is entitled, “Demurrer for Misjoinder of Parties and Causes,” and contains an assertion that there is a misjoinder of parties and causes of action, is insufficient basis for an appeal as a matter of right from an order overruling such demurrer. Hence, defendants’ purported appeal must be and is dismissed.

Appeal dismissed.