Taylor v. Postal Life Insurance

108 S.E. 502 | N.C. | 1921

It has been held with us in a uniform line of decisions that, where there is a misjoinder of both parties and causes of action in the same pleading, a demurrer for this reason will be sustained, and that a separation or division in such a case is not permissible under C.S. 516.Rose v. Warehouse Co., ante, 107; Roberts v. Mfg. Co., 181 N.C. 204, and cases there cited.

But as said in Quarry Co. v. Construction Co.,151 N.C. 345:

"If the grounds of the bill be not entirely distinct and wholly unconnected, if they arise out of one and the same transaction or series of transactions, forming one course of dealing and tending to one end, if one connected story can be told of the whole, then the objection cannot apply.Bedsole v. Monroe, 40 N.C. 313.

"The plaintiff may unite in the same complaint several causes of action when they arise out of the same transaction or transactions connected with the same subject of action, the purpose being to extend the right of the plaintiff 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 the plaintiff may have against the defendant arising out of the same subject of action, so that the Court may not be forced `to take two bites at a cherry,' but may dispose of the whole subject of controversy and its incidents and corollaries in one action." Hamlin v.Tucker, 72 N.C. 502.

Applying these principles, we do not think the causes of action set out in the defendant's answer and counterclaim are so unrelated and independent of each other as to make the pleading defective for multifariousness. All the matters sought to be adjudicated arise out of the same transaction, or series of transactions which make one composite whole. The final adjustment of the insurance money is linked with the settlement of these items and with the estate. Under C.S. 507, such causes may be united in the same complaint. Oyster v. Mining Co., 140 N.C. 135; Fisher v. Trust Co.,138 N.C. 224.

Therefore, upon authority, we think the action of his Honor in overruling the demurrer and refusing to strike out the defendant's further defense and counterclaim must be sustained.

Affirmed.

Cited: Scales v. Trust Co., 195 N.C. 776; Berger v. Stevens,197 N.C. 237; Schnepp v. Richardson, 222 N.C. 230; Prince v. Barnes,224 N.C. 702; Pressley v. Tea Co., 226 N.C. 519; Teague v. Oil Co.,232 N.C. 66.

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