Citizens National Bank v. Angelo Bros.

137 S.E. 705, 193 N.C. 576, 1927 N.C. LEXIS 407

Opinion

Stacy, C. J.,

after stating the case: The cross-actions of Angelo Brothers as against the receiver, on the one hand, and the officers and directors of the Merchants Bank and Trust Company, on the other, are separate and distinct; they are founded on different causes of alleged liability — the one sounding in contract, the other in tort; they are set up against different parties; and they are incorporated in the same complaint. Under all the decisions, such a pleading is subject to demurrer. Harrison v. Transit Co., 192 N. C., 545; Rogers v. Rogers, 192 N. C., 50; Lee v. Thornton, 171 N. C., 209; Quarry Co. v. Construction Co., 151 N. C., 345, and cases there cited.

The several causes of action which may be united or joined in the same complaint are classified and enumerated in C. S., 507; and, in addition, the following limitation is expressly incorporated therein: “But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated.” See R. R. v. Hardware Co., 135 N. C., 75; Gattis v. Kilgo, 125 N. C., 133.

But it is suggested that even if the several causes of action have been improperly united in the same pleading, a separation or division should be ordered under C. S., 516. It is well settled that where there is a misjoinder, both of parties and of causes of action, and a demurrer is interposed upon this ground, the demurrer should be sustained and the action dismissed. Robinson v. Williams, 189 N. C., 256; Bickley v. Green, 187 N. C., 772; Shore v. Holt, 185 N. C., 312; Rose v. Warehouse Co., 182 N. C., 107; Roberts v. Mfg. Co., 181 N. C., 204; Campbell v. Power Co., 166 N. C., 488; Thigpen v. Cotton Mills, 151 N. C., 97; Morton v. Tel. Co., 130 N. C., 299; Cromartie v. Parker, 121 N. C., 198.

This case presents a striking illustration of the wisdom of the rule established by these decisions. If the plaintiff hold the note in suit only as collateral, and the remaining collateral held by it be amply sufficient, as alleged, to discharge its obligation, then the bringing into this suit of the other defendants would seem to be wholly unnecessary. At any rate, we think the demurrers filed herein are well founded, and that the cross-actions, as against the demurring defendants, should be dismissed.

Reversed.