Ezzell v. . Merritt
31 S.E.2d 751
N.C.
1944
Check Treatment
DeNny, J.

Thе following provisions are contained in G. S., 1-68: “All persons having an interest in the subject of the action, and in obtaining the relief demanded may bе joined as plaintiffs, either jointly, severally, or in the alternative, except as otherwise provided. If, upon the application of any party, it shall appear that such joinder may embarrass or delay the trial, the court may order separate trials or mаke such other order as may be expedient.” G. S., 1-123, reads in part as follows: “The plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of — 1. The same transaction, or transaction connected with the same subject of action.”

*605 It is often exceedingly difficult to determine what parties may be joined as plaintiffs as wеll as what causes of action may be joined under the provisions contained in the foregoing statutes. “No general rule has been оr can be adopted with regard to multifariousness.” Craven County v. Investment Co., 201 N. C., 523, 160 S. E., 753.

The action here is not for the foreclosure of the mortgage deed exeсuted by Elizabeth Ezzell, on 19 December, 1928, nor for a judgment on the note secured thereby, but is based upon an alleged parol agreement to pay to the heirs of Peter Brewer a sum of money equal to the principal amount for which the aforesaid note was exеcuted, together with interest thereon ‍‌‌​‌​​‌‌‌​‌​‌​‌‌​‌‌​‌​​​​‌​​​​​​​​‌‌​​​‌‌​​‌​‌​‌‍at the rate of 6% per annum from the date of its execution. The plaintiffs, heirs of Peter Brewer, in their complaint allege the possession of the note and mortgage and their readiness to surrender to the defendant Merritt said instrument uрon the payment of the balance of the purchase money for the land conveyed, alleged to be due under said parol agreement.

J. H. Lewis, administrator d. b. n., c. t. a., of the estate of Peter Brewer, alleges no claim against the defendant Merritt in this action, save and exceрt that alleged by his co-plaintiffs, which claim is bottomed on the alleged parol agreement hereinabove set forth, and not upоn the note and mortgage securing the same, owned by said estate.

It is clear, however, that if "the contract was made as alleged, it was the purpose of Elizabeth Ezzell to obtain from the defendant Merritt, an additional sum of money for the benefit of all the heirs of Petеr Brewer, equal to the amount due on the note and mortgage which purports to be a lien on the land purchased by said defendant. Thе admin-trator d. b. n., c. t. a., of the estate of Peter Brewer was made a party, not upon motion of the plaintiffs ‍‌‌​‌​​‌‌‌​‌​‌​‌‌​‌‌​‌​​​​‌​​​​​​​​‌‌​​​‌‌​​‌​‌​‌‍who are heirs of Peter Brewer, nor for their benefit, but the court ex mero moiu, ordered that an administrator d. b. n., c. t. a., of the estate of Peter Brewer should be appointed and made a party plaintiff, in order to рrotect the defendant Merritt against a claim on the part of the estate, based on the note and mortgage in event of a recovery on the alleged parol agreement.

The defendant Merritt further contends that in making A. K. Parker, administrator of the estate of James I. Gainey, a party defendant, there is also a misjoinder of parties and causes of action.

G. S., 1-69, reads in part as follows : “All persons may be made defendants, jointly, severally, or in the alternative, who have, or claim, an interest ‍‌‌​‌​​‌‌‌​‌​‌​‌‌​‌‌​‌​​​​‌​​​​​​​​‌‌​​​‌‌​​‌​‌​‌‍in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved.”

*606 Tbe nоte and mortgage were both executed to James I. Gainey individually, and not to him as administrator of the estate of Peter Brewer, as they should have been. Gainey’s administrator is made a party defendant for the purpose of showing such fact, and by his answer he admits the allegations as to the ownership of the note and mortgage, and, as administrator of the estate of James I. Gainey, disclaims any interest therein.'

In Insurance Co. v. R. R., 179 N. C., 255, 102 S. E., 417, a demurrer ore tenus was sustained in the court below, but the court allowed a motion to amend and make new parties, and to consolidate five pending actions. One of the plaintiffs disclaimed any recovery for itself, except that through it its co-plaintiffs might be reimbursed. An appeal was taken from these orders, and this Court said: “The amendment merely brings in other parties interested in this fund, and whose presence is necessary to a complete settlement of the controversy. This prevents the trial of numerous actions when the entire matter can be determined in one action. The object of consolidating two or more actions is to avoid a multiplicity of suits, to guard against oppression or abuse, to prevent delay, and especially to save unnecessary cost or expense; in short, the attainment оf justice with the least expense and vexation to the parties litigant. Consolidation, however, is improper, where the conduct оf the cause will be embarrassed, or complications or prejudice will result, which will injuriously affect the rights of a party.” G. S., 1-73; Craven County v. Ins. Co., supra.

In Young v. Young, 81 N. C., 91, the Court in considering the same questions ‍‌‌​‌​​‌‌‌​‌​‌​‌‌​‌‌​‌​​​​‌​​​​​​​​‌‌​​​‌‌​​‌​‌​‌‍involved herein, quoted from Hamlin v. Tucker, 72 N. C., 502, as follows: “The purpose being to extend the right to plaintiffs to join actions, not merely by including equitable as well as legal causes of action, but to make the ground broad enough to cover all causes of action which a plaintiff may have against ,a defendant, arising out of the same subject of action, so that the court may not be forced to tаke 'two bites at a cherry,’ but may dispose of the whole subject of controversy, and its incidents and corollaries in one action.”

Wе think the additional parties necessary to a complete determination or settlement of the questions involved. We see no reason why the joinder of these parties should embarrass or injuriously affect the rights of the defendant Merritt. There is but one cause of action alleged against him, the other matters alleged are incidental.

Moreover, conceding but not deciding that there is a misjoinder оf parties and causes of action, an answer has been filed to the original ‍‌‌​‌​​‌‌‌​‌​‌​‌‌​‌‌​‌​​​​‌​​​​​​​​‌‌​​​‌‌​​‌​‌​‌‍complaint and that answer has not been withdrawn by leave of court, which must be done before a demurrer can be entertained. “Generally *607 speaking, a demurrer may not be entertainеd after tbe answer is filed unless by leave of court tbe answer is withdrawn, because a defendant is not permitted to answer and demur to one cause of action at tbe same time. Finch v. Baskerville, 85 N. C., 205; Moseley v. Johnson, 144 N. C., 257; Rosenbacher v. Martin, 170 N. C., 236. But tbis ruling does not apply when objection is entered to tbe jurisdiction of tbe court or to tbе complaint on tbe ground that it does not state facts sufficient to constitute a cause of action. C. S., 518, and cases cited.” Cherry v. R. R., 185 N. C., 90, 116 S. E., 192.

For tbe reasons stated, we tbink tbe demurrer should have been overruled.

Eeversed.