Burton v. City of Reidsville

Supreme Court of North Carolina

Burton v. City of Reidsville

83 S.E.2d 651, 240 N.C. 577, 1954 N.C. LEXIS 491

CourtSupreme Court of North Carolina

DecidedSeptember 22, 1954

Docket22

StatusPublished

Cited by7 cases

This text of 83 S.E.2d 651 (Burton v. City of Reidsville) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burton v. City of Reidsville, 83 S.E.2d 651, 240 N.C. 577, 1954 N.C. LEXIS 491 (N.C. 1954).

Pincite

Opinion

JoiiNsoN, J.

In order to justify joinder of parties plaintiff the interests of the plaintiffs must be consistent. True, the unity or identity of interest required at common law is not necessary under the Code (Gr.S. 1-68, 1-70; Wilson v. Motor Lines, 207 N.C. 263, 176 S.E. 750), but two or more plaintiffs representing- opposing interests with reference to the main purpose of the action may not be joined. Osborne v. Canton, 219 N.C. 139, 13 S.E. 2d 265; McIntosh, N. C. Practice and Procedure, Sec. 228, p. 212; 39 Am. Jur., Parties, See. 29, p. 892; Hallett v. Moore, 282 Mass. 380, 185 N.E. 474, 91 A.L.R. 572. Moreover, an intervener as a party plaintiff in a taxpayer’s action ordinarily must come into the ease as it exists and conform to the pleadings as he finds them. See 39 Am. Jur., Parties, Sec. 79.

The plaintiff J. W. Moricle and those similarly situated have come into the case, and by their pleading have expressly denied all material allegations of the complaint and attempted to assert claims wholly antagonistic to those alleged by the original plaintiffs. Manifestly, the court below erred in permitting these adverse parties to remain in the action as plaintiffs. The question whether they may be joined as defendants not having been ruled on below is not presented for review. This Court will not decide questions on appeal which have not been adjudicated in the court below. Bank v. Caudle, 239 N.C. 270, 79 S.E. 2d 723; Perry v. Doub, 238 N.C. 233, 77 S.E. 2d 711.

Next we come to the question whether the court below erred in allowing the defendants’ motion for judgment on the pleadings. These principles of law come into focus:

A motion for judgment on the pleadings is in effect a demurrer to the challenged pleading and admits the truth of all well-pleaded facts in the pleading and the untruth of the movant’s own allegations in so far as they are controverted by the pleading of the adversary. McGee v. Ledford, 238 N.C. 269, 77 S.E. 2d 638; Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. See also Dobias v. White, 239 N.C. 409, 80 S.E. 2d 23. Moreover, if good in any respect or to any extent, a plea will not be overthrown by motion for judgment on the pleadings. Erickson v. Starling, supra. See also Byers v. Byers, 223 N.C. 85, 25 S.E. 2d 466; Perry v. Doub, supra.

*582 Tbe complaint, when liberally construed in favor of the pleader, as is the rule on demurrer or motion for judgment on the pleadings, is sufficient to allege abuse of discretion on the part of the governing board of the City of Reidsville in ordering the destruction of the apartment buildings. This suffices to overthrow the motion for judgment on the pleadings and entitles the plaintiffs to be heard on the questions of fact raised by the pleadings. See In re Housing Authority, 235 N.C. 463, 70 S.E. 2d 500. The judgment was erroneously entered and will be set aside. It is so ordered.

Error.

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JoiiNsoN, J.

In order to justify joinder of parties plaintiff the interests of the plaintiffs must be consistent. True, the unity or identity of interest required at common law is not necessary under the Code (Gr.S. 1-68, 1-70; Wilson v. Motor Lines, 207 N.C. 263, 176 S.E. 750), but two or more plaintiffs representing- opposing interests with reference to the main purpose of the action may not be joined. Osborne v. Canton, 219 N.C. 139, 13 S.E. 2d 265; McIntosh, N. C. Practice and Procedure, Sec. 228, p. 212; 39 Am. Jur., Parties, See. 29, p. 892; Hallett v. Moore, 282 Mass. 380, 185 N.E. 474, 91 A.L.R. 572. Moreover, an intervener as a party plaintiff in a taxpayer’s action ordinarily must come into the ease as it exists and conform to the pleadings as he finds them. See 39 Am. Jur., Parties, Sec. 79.

The plaintiff J. W. Moricle and those similarly situated have come into the case, and by their pleading have expressly denied all material allegations of the complaint and attempted to assert claims wholly antagonistic to those alleged by the original plaintiffs. Manifestly, the court below erred in permitting these adverse parties to remain in the action as plaintiffs. The question whether they may be joined as defendants not having been ruled on below is not presented for review. This Court will not decide questions on appeal which have not been adjudicated in the court below. Bank v. Caudle, 239 N.C. 270, 79 S.E. 2d 723; Perry v. Doub, 238 N.C. 233, 77 S.E. 2d 711.

Next we come to the question whether the court below erred in allowing the defendants’ motion for judgment on the pleadings. These principles of law come into focus:

A motion for judgment on the pleadings is in effect a demurrer to the challenged pleading and admits the truth of all well-pleaded facts in the pleading and the untruth of the movant’s own allegations in so far as they are controverted by the pleading of the adversary. McGee v. Ledford, 238 N.C. 269, 77 S.E. 2d 638; Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. See also Dobias v. White, 239 N.C. 409, 80 S.E. 2d 23. Moreover, if good in any respect or to any extent, a plea will not be overthrown by motion for judgment on the pleadings. Erickson v. Starling, supra. See also Byers v. Byers, 223 N.C. 85, 25 S.E. 2d 466; Perry v. Doub, supra.

*582 Tbe complaint, when liberally construed in favor of the pleader, as is the rule on demurrer or motion for judgment on the pleadings, is sufficient to allege abuse of discretion on the part of the governing board of the City of Reidsville in ordering the destruction of the apartment buildings. This suffices to overthrow the motion for judgment on the pleadings and entitles the plaintiffs to be heard on the questions of fact raised by the pleadings. See In re Housing Authority, 235 N.C. 463, 70 S.E. 2d 500. The judgment was erroneously entered and will be set aside. It is so ordered.

Error.

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83 S.E.2d 651, 240 N.C. 577, 1954 N.C. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-city-of-reidsville-nc-1954.

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