Denny v. Coleman

95 S.E.2d 352 (1956) 245 N.C. 90

Mary Alice DENNY, Guardian of the Estate of Louise Huffines Denny, Minor, and Mary Alice Denny, Individually,
v.
R. C. COLEMAN, Sr., R. C. Coleman, Jr., Joe Coleman, C. L. Coleman and Mrs. Harriet L. Sikes, Trading and Doing Business as Greensboro Tobacco Warehouse Company, and J. F. Fuqua, also known as J. T. Fuqua.

No. 594.

Supreme Court of North Carolina.

November 28, 1956.

Andrew Joyner, Jr., Greensboro, for appellants.

Chas. M. Ivey, Jr., Greensboro, for appellees.

DENNY, Justice.

A plaintiff may sue joint tort-feasors either jointly or separately. McIntosh, North Carolina Practice and Procedure, 2nd Edition, Volume 1, section 584, page 293; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183; Jones v. Otis Elevator Co., 231 N.C. 285, 56 S.E.2d 684.

McIntosh, supra, section 584, page 343, states: "* * * when the acts of defendants concur to produce a single injury, thus making them joint tort-feasors, plaintiff may sue them jointly or separately. He has the same option when two defendants are both liable to him in tort, though, as between themselves, their liability is primary and secondary."

In 53 Am.Jur., Trover and Conversion, sections 155 and 156, page 929 et seq., it is said:

"Although one of several tort-feasors may be held liable for the full amount of damages for a conversion in which he has participated, and it is not necessary to join the others, there is joint and several liability on the part of several persons participating in a conversion * * *.

"It is clear that it is not necessary to join the original converter of the property with a subsequent purchaser in an action against the latter for a wrongful conversion of the property."

Ordinarily, in an action arising out of a joint tort, wherein judgment may be rendered against two or more persons, who are jointly and severally liable, and not all of the joint tort-feasors have been made parties, those who have been made parties may at any time before judgment, upon motion, have the other joint tort-feasors brought in and made parties defendant in order to determine and enforce contribution. G.S. § 1-240; Godfrey v. Tidewater Power Co., supra; Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434.

The motion to make an additional party, in the instant case, however, was not made until after a judgment by default and inquiry had been entered, a judgment which these appellants concede is valid and which they are not entitled to have set aside. Therefore, nothing is left open for further inquiry in this action, as between the plaintiffs and the appellants, except the amount of damages to be ascertained by the jury. G.S. § 1-212; Wilson v. Chandler, 238 N.C. 401, 78 S.E.2d 155; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Mitchell v. Town of Ahoskie, 190 N.C. 235, 129 S.E. 626; Armstrong Cator & Co. v. E. M. Asbury & Co., 170 N.C. 160, 86 S.E. 1038; Farmer-Cole Plumbing Co. v. Wilson Hotel Co., 168 N.C. 577, 84 S.E. 1008; Blow v. Joyner, 156 N.C. 140, 72 S.E. 319.

G.S. § 1-240 authorizes defendants in tort actions to bring in other joint tortfeasors before judgment in order that their mutual contingent liabilities may be litigated "before they have accrued, Lackey v. Southern R. Co., 219 N.C. 195, 13 S.E.2d 234, so that all matters in controversy growing out of the same subject of action may be settled in one action, Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434, though the plaintiff in the action may be thus delayed in securing his remedy." Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73, 74. However, when a plaintiff has elected to sue one or more joint tort-feasors, but not all of them, the others are not necessary parties and the plaintiff cannot be compelled to pursue them. Charnock v. Taylor, supra.

In our opinion, when joint tortfeasors, who have been sued in an action, fail to file an answer to a complaint that states a good cause of action, and the plaintiffs obtain a judgment by default and inquiry, which is regular in all respects, a motion, lodged thereafter, to bring in other joint tort-feasors so as to determine liability for contribution as between themselves, comes too late, and we so hold. Such defendants may, however, seek to enforce their right to contribution in the manner provided in G.S. § 1-240.

The cases of Beard v. Sovereign Lodge W. O. W., 184 N.C. 154, 113 S.E. 661 and Strickland v. Shearon, 193 N.C. 599, 137 S.E. 803, cited and relied upon by the appellants, are not in point. These cases involve motions to set aside judgments based on facts wholly unrelated to the factual situation on the present appeal.

The judgment of the court below is affirmed.

Affirmed.

JOHNSON, J., not sitting.