Gilliam v. Ruffin

Mallard, C.J.

The plaintiffs had no authority to amend their complaint in this case so as to again make the Hancocks necessary parties. We find no statute under these circumstances giving them such authority. The order of Judge Crissman of 15 March 1968 does not give them such authority. The order of Judge Exum dated 26 July 1968, to which the plaintiffs did not except, specifically denies their motion of 20 July 1968 to be permitted to amend. Plaintiffs have not cited any authority permitting them to amend but argue in their brief:

“So far as we could determine, the' situation presented was unique. But no reason in law or equity presented itself why the appellants could not be brought back into the action as new parties under G.S. 1-73, since the objection of misjoinder of parties and causes had been 'removed by the dropping of the Fifth and Sixth Causes of Action involving Williams and BOFA, Inc.”

G.S. 1-73 contemplates that all persons necessary to a complete determination of the matters in litigation may, in some instances, and must in others, be made parties plaintiff or defendant. Moore v. Massengill, 227 N.C. 244, 41 S.E. 2d 655. In the instant case the court had specifically dismissed it as to the Hancocks, and G.S. 1-73 is not applicable.

Under G.S. 1-132, where a demurrer is sustained for misjoinder of causes only, the several causes of action may be divided. In the instant case the plaintiffs attempted to divide the causes of action by amendment deleting portions thereof. This they could not do.

The Supreme Court has held that under G.S. 1-132 a cause of action cannot be divided where there is both a misjoinder of causes and also a misjoinder of parties. Tart v. Byrne, 243 N.C. 409, 90 S.E. 2d 692; Southern Mills, Inc. v. Yarn Co., 223 N.C. 479, 27 S.E. 2d 289; Bank v. Angelo, 193 N.C. 576, 137 S.E. 705.

In the case of Short v. Realty Co., 262 N.C. 576, 138 S.E. 2d 210, Justice Higgins said:

“The court committed error in sustaining the demurrer for mis-joinder of parties and causes and thereafter allowing the plaintiffs to amend. A misjoinder of parties and causes requires dismissal of the action.”

In the case of Bannister & Sons, Burch, Salter, Stock Yards, Troup v. Williams, 261 N.C. 586, 135 S.E. 2d 572, Justice Sharp said:

“Under our practice ‘a misjoinder of parties and causes of action constitutes a fatal defect. A severance is not permissible.’ Shaw v. Barnard, 229 N.C. 713, 51 S.E. 2d 295; Moore County v. Burns, 224 N.C. 700, 32 S.E. 2d 225. In other words, ‘the Court is not authorized in such cases, to direct a severance of the respective causes of action for trial under the provisions of G.S. 1-132.’ The action must be dismissed.”

When the demurrer was allowed on the grounds of misjoinder of parties and causes of action, the action should have been dismissed. Kearns v. Primm, 263 N.C. 423, 139 S.E. 2d 697; Exterminating Co. v. O’Hanlon, 243 N.C. 457, 91 S.E. 2d 222; Snotherly v. Jenrette, 232 N.C. 605, 61 S.E. 2d 708. It was dismissed as to these defendants. The order denying the motion of the Hancocks to again dismiss this case as to them is

Reversed.

BRItt and Pareer, JJ., concur.