Miller v. Jones

Supreme Court of North Carolina

Miller v. Jones

151 S.E.2d 23, 268 N.C. 568, 1966 N.C. LEXIS 1259

DecidedNovember 23, 1966

StatusPublished

This text of 151 S.E.2d 23 (Miller v. Jones) 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

Miller v. Jones, 151 S.E.2d 23, 268 N.C. 568, 1966 N.C. LEXIS 1259 (N.C. 1966).

Pincite

Opinion

Per Curiam.

A defect of parties occurs when there has been a failure to join either a plaintiff or a defendant whose presence in the suit is necessary to give the court jurisdiction and authority to decide the controversy. When such a defect appears from the complaint itself, it is a ground for demurrer, G.S. 1-127(4), and a fatal defect unless the necessary party is brought in under G.S. 1-73. A superfluity of parties is not a defect of parties; it is a harmless surplusage which is no ground for demurrer. (“A ‘defect of parties’ applies to necessary parties, and not to unnecessary ones.” Shuford v. Yarborough, 197 N.C. 150, 151, 147 S.E. 824.) A misjoinder of parties, standing alone, is likewise not a ground for demurrer. Such a misjoinder may be cured by the withdrawal of a plaintiff or the dismissal of a defendant, as the case may be. 1 McIntosh, North Carolina Practice and Procedure § 641 (2d Ed. 1956); Brandis, Permissive Joinder of Parties, 25 N.C.L. Rev. 1, 6 (1946). See also Tucker v. Eatough, 186 N.C. 505, 120 S.E. 57.

Obviously, there is no defect of parties in this action. Plaintiff has made parties defendant the only two people involved who could be defendants. Were we to assume that the femme defendant is not subject to suit upon the facts alleged in the complaint because — as defendants contend — she is not civilly responsible for uniting with her husband in committing a tort, her joinder would be merely sur-plusage and no grounds for demurrer. We consider it appropriate to say, however, that we make no such assumption with reference to the femme defendant’s nonliability. 41 C.J.S., Husband and Wife § 219, p. 711 (1944); 27 Am. Jur., Husband and Wife § 480 (1940); Annot., Liability of wife for husband’s torts, 12 A.L.R. 1459, 1480. See also Burnett v. Nicholson, 86 N.C. 99, and the comments of Clark, C.J., in his concurring opinion in Young v. Newsome, 180 N.C. 315, 316, 104 S.E. 660, 661.

Defendants’ appeal has no worth either in substantive or adjective law; it is totally without merit. The Supreme Court will not entertain an appeal from an order overruling a demurrer except when the demurrer is interposed as a matter of right for misjoinder of parties and causes of action. Rulings based upon other grounds will be reviewed only upon a writ of certiorari. Rules of Practice in the Supreme Court of North Carolina 4(a).

Appeal dismissed.

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Per Curiam.

A defect of parties occurs when there has been a failure to join either a plaintiff or a defendant whose presence in the suit is necessary to give the court jurisdiction and authority to decide the controversy. When such a defect appears from the complaint itself, it is a ground for demurrer, G.S. 1-127(4), and a fatal defect unless the necessary party is brought in under G.S. 1-73. A superfluity of parties is not a defect of parties; it is a harmless surplusage which is no ground for demurrer. (“A ‘defect of parties’ applies to necessary parties, and not to unnecessary ones.” Shuford v. Yarborough, 197 N.C. 150, 151, 147 S.E. 824.) A misjoinder of parties, standing alone, is likewise not a ground for demurrer. Such a misjoinder may be cured by the withdrawal of a plaintiff or the dismissal of a defendant, as the case may be. 1 McIntosh, North Carolina Practice and Procedure § 641 (2d Ed. 1956); Brandis, Permissive Joinder of Parties, 25 N.C.L. Rev. 1, 6 (1946). See also Tucker v. Eatough, 186 N.C. 505, 120 S.E. 57.

Obviously, there is no defect of parties in this action. Plaintiff has made parties defendant the only two people involved who could be defendants. Were we to assume that the femme defendant is not subject to suit upon the facts alleged in the complaint because — as defendants contend — she is not civilly responsible for uniting with her husband in committing a tort, her joinder would be merely sur-plusage and no grounds for demurrer. We consider it appropriate to say, however, that we make no such assumption with reference to the femme defendant’s nonliability. 41 C.J.S., Husband and Wife § 219, p. 711 (1944); 27 Am. Jur., Husband and Wife § 480 (1940); Annot., Liability of wife for husband’s torts, 12 A.L.R. 1459, 1480. See also Burnett v. Nicholson, 86 N.C. 99, and the comments of Clark, C.J., in his concurring opinion in Young v. Newsome, 180 N.C. 315, 316, 104 S.E. 660, 661.

Defendants’ appeal has no worth either in substantive or adjective law; it is totally without merit. The Supreme Court will not entertain an appeal from an order overruling a demurrer except when the demurrer is interposed as a matter of right for misjoinder of parties and causes of action. Rulings based upon other grounds will be reviewed only upon a writ of certiorari. Rules of Practice in the Supreme Court of North Carolina 4(a).

Appeal dismissed.

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Bluebook (online)

151 S.E.2d 23, 268 N.C. 568, 1966 N.C. LEXIS 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-jones-nc-1966.

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