Grady v. . Warren

161 S.E. 319, 201 N.C. 693, 1931 N.C. LEXIS 71

• Court: Supreme Court of North Carolina
• Decided: November 25, 1931
• Status: Published

Opinion

CONNOR, J.

This is an action by tbe receiver of an insolvent banking corporation against tbe directors of said corporation, and also against another banking corporation, with which tbe insolvent corporation, prior to its insolvency, was merged or consolidated.

Tbe plaintiff alleges as bis cause of action against tbe defendants, directors of the insolvent corporation, while it was engaged in business, and prior to its merger or consolidation with tbe defendant banking corporation, acts of negligence, resulting in its insolvency; be alleges as bis cause of action against tbe defendant banking corporation that after tbe merger or consolidation, said banking corporation breached its contract with tbe directors of tbe insolvent corporation, with respect to its liquidation, resulting in loss to said corporation. There were no allegations in the complaint of a conspiracy between tbe defendants, or of a course of dealing between them with respect to tbe assets of the insolvent corporation, amounting to a conspiracy.

There is a misjoinder of parties (R. R. v. Hardware Co., 135 N. C., 73, 47 S. E., 234) and of causes of action (Huggins v. Waters, 167 N. C., 197, 83 S. E., 334) in tbe complaint in this action. For this reason there is no error in tbe judgment sustaining tbe demurrers (C. S., 511(4) and (5) and dismissing tbe action. Shuford v. Yarborough, 198 N. C., 5, 150 S. E., 618.

There is no allegation in tbe complaint of a general and continued course of dealing, or of a systematic policy of wrong doing, participated in by all tbe defendants, and resulting in loss to tbe plaintiff. For this reason Trust Co. v. Peirce, 195 N. C., 717, 143 S. E., 524, cited and relied on by plaintiff, is not applicable in this case.

C. S., 456, as amended by chapter 344, Public Laws 1931, applies only when tbe plaintiff is in doubt as to tbe persons from whom be is entitled to redress on bis cause of action; in that case be may join two or more persons as defendants to determine which is liable. Tbe statute manifestly does not authorize a misjoinder of causes of action and of parties. Such was not its purpose. A complaint is demurrable now as before tbe amendment of O. S., 456, for a misjoinder of parties, and of causes of action. C. S., 511(4) and (5).

Affirmed.