Gaines v. Atlas Plywood Corp.

Supreme Court of North Carolina

Gaines v. Atlas Plywood Corp.

116 S.E.2d 427, 253 N.C. 191, 1960 N.C. LEXIS 480

CourtSupreme Court of North Carolina

DecidedOctober 12, 1960

StatusPublished

Cited by1 cases

This text of 116 S.E.2d 427 (Gaines v. Atlas Plywood Corp.) 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.

Bluebook

Gaines v. Atlas Plywood Corp., 116 S.E.2d 427, 253 N.C. 191, 1960 N.C. LEXIS 480 (N.C. 1960).

Pincite

Opinion

Winboene, C. J.

The only assignment of error on this appeal is based upon an exception to the ruling of the trial judge in refusing to dismiss the action in its entirety. In the light of well established principle of law in this State, the challenge by the exception is well taken.

The defendants contend, and this Court holds properly so, that their demurrer should have been sustained and the action dismissed in its entirety on the ground that it appears upon the face of the complaint that there is a misjoinder both of parties and of causes of action. In support of this contention the defendants point out that Georgia-Pacific Corporation is in no way interested in the alleged cause of action for the conversion of the timber in 1957.

Indeed in Teague v. Oil Co., 232 N.C. 65, 59 S.E. 2d 2, opinion by Denny, J., this Court, in keeping with long line of decisions, reiterated that “A demurrer should be sustained where there is a mis-[193]*193joinder of parties and causes of action, and the Court is not authorized in such cases, to direct a severance of the respective causes of action for trial under the provisions of G.S. 1-132.” See cases there cited.

Moreover, in Bank v. Angelo, 193 N.C. 576, 137 S.E. 705, this Court, in opinion by Stacy, C. J., declared that “It is well settled that where there is a misjoinder, both of parties and causes of action, and a demurrer is interposed upon this ground, the demurrer should be sustained and the action dismissed.” To like effect are these cases: Thigpen v. Cotton Mills, 151 N.C. 97, 65 S.E. 750; Roberts v. Mfg. Co., 181 N.C. 204, 106 S.E. 664; Shore v. Holt, 185 N.C. 312, 117 S.E. 165; Robinson v. Williams, 189 N.C. 256, 126 S.E. 621; Erickson v. Starling, 233 N.C. 539, 64 S.E. 2d 832; Sellers v. Ins. Co., 233 N.C. 590, 65 S.E. 2d 21.

Furthermore, this Court has held that the provisions of G.S. 1-123, as to what causes of action may be joined in the complaint, are mandatory and not directory. Eller v. R. R., 140 N.C. 140, 52 S.E. 305.

For reason stated the action will be dismissed.

Action dismissed.

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Winboene, C. J.

The only assignment of error on this appeal is based upon an exception to the ruling of the trial judge in refusing to dismiss the action in its entirety. In the light of well established principle of law in this State, the challenge by the exception is well taken.

The defendants contend, and this Court holds properly so, that their demurrer should have been sustained and the action dismissed in its entirety on the ground that it appears upon the face of the complaint that there is a misjoinder both of parties and of causes of action. In support of this contention the defendants point out that Georgia-Pacific Corporation is in no way interested in the alleged cause of action for the conversion of the timber in 1957.

Indeed in Teague v. Oil Co., 232 N.C. 65, 59 S.E. 2d 2, opinion by Denny, J., this Court, in keeping with long line of decisions, reiterated that “A demurrer should be sustained where there is a mis-[193]*193joinder of parties and causes of action, and the Court is not authorized in such cases, to direct a severance of the respective causes of action for trial under the provisions of G.S. 1-132.” See cases there cited.

Moreover, in Bank v. Angelo, 193 N.C. 576, 137 S.E. 705, this Court, in opinion by Stacy, C. J., declared that “It is well settled that where there is a misjoinder, both of parties and causes of action, and a demurrer is interposed upon this ground, the demurrer should be sustained and the action dismissed.” To like effect are these cases: Thigpen v. Cotton Mills, 151 N.C. 97, 65 S.E. 750; Roberts v. Mfg. Co., 181 N.C. 204, 106 S.E. 664; Shore v. Holt, 185 N.C. 312, 117 S.E. 165; Robinson v. Williams, 189 N.C. 256, 126 S.E. 621; Erickson v. Starling, 233 N.C. 539, 64 S.E. 2d 832; Sellers v. Ins. Co., 233 N.C. 590, 65 S.E. 2d 21.

Furthermore, this Court has held that the provisions of G.S. 1-123, as to what causes of action may be joined in the complaint, are mandatory and not directory. Eller v. R. R., 140 N.C. 140, 52 S.E. 305.

For reason stated the action will be dismissed.

Action dismissed.

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116 S.E.2d 427, 253 N.C. 191, 1960 N.C. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaines-v-atlas-plywood-corp-nc-1960.

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