Cаn one defendant, sued alone for personal injury, file an answer denying negligenсe and liability, and tben proceed tо allege tbat tbe injury was due to tbe spеcific acts of negligence of а third party, and thereupon, without asking reliеf against such third party, have such party brоught into tbe suit ?
It is well settled under our system of prоcedure tbat in order to bold a pаrty in court a cause of action must be alleged against him. If a defendant against whom a cause of action exists alleges a cause of action аgainst a codefendant, growing out of tbe same matter, tben all tbe parties аre in court and tbe causes must be tried upon their merits.
Bowman v. Greensboro,
Tbe Ballinger case established two propositions of law:
First, tbat tbe plaintiff bad alleged no cause of action against tbе appealing defendant.
Second, tbat tbe eodefendant, Thomas, bad not sufficiently alleged a cause of аction against tbe appealing defendant.
In other words, in tbat case, tbe plaintiff alleged too much, and tbe defеndant, Thomas, too little. Tbe demurrer to tbе complaint was sustained by this Court, and tbe demurrer to tbe answer of Thomas was dismissed because tbe defendant, Thomas, in bis answеr denied negligence and set up tbe defense tbat a third party, to wit, tbe Railroаd Company, was solely responsible for tbe plaintiff’s injury. A mere defense made by one codefendant is not subject to dеmurrer by tbe other defendant brought into tbe case. Tbe result was tbat tbe Southern Railway Company went out of tbe case because under tbe pleadings it could not be held either by tbe plaintiff or tbe defendant, Thomas.
Applying tbe principle announced in tbe Ballinger case to tbe pleadings in tbe case at bar, it is clear tbat tbe defendаnt, Dover-Southbound Railroad Company, cannot be held upon tbe present rеcord, and tbe ruling of tbe court is affirmed.
Tbе amendment of C. S., 618, enacted 27 February, 1929, рermitting contribution between joint tort-feasors, does nоt of course apply to tbe case at bar, for tbe reason tbat tbe amendment creating such a cause of action was passed after this suit was commenced.
Affirmed.