WiNBORNE, J.
Regarding motion 'of appellee to dismiss : It is noted that the two actions were tried together for convenience. They were not consolidated in the sense that they became, by order of court, one action. The parties are not the same. The purposes are not the same. The plaintiffs are not united in interest. Separate causes of action are alleged. Therefore, they could not be joined in the same action under C. S., 457. Hence, there should have been separate appeals. The amendment to Rule 19 of Rules of Practice in the Supreme Court, 213 N. C., 808, now Rule 19 (2), does not relieve the situation for appellants. That applies only when there are two or-more appeals in one action. In such event, it shall not be necessary to have more than one transcript. But, without intending to make a precedent of the case in this respect, we will pass the defect, and proceed to consider the case as constituted upon its merits.
Regarding the appeal in State ex rel. Way Kinsland v. J. D. Mackey:
Appellant’s assignments in the main revolve around the refusal of the court to allow amendments to his original answer to set up in defense additional reasons for his refusal to surrender the office of tax collector, as shown in the foregoing statement of facts.
That the judge or court may, before or after judgment, in furtherance of justice, allow any pleading to be amended when the amendment does not change substantially the claim or defense is well settled. C. S., 547. Also, decisions of this Court are uniform in holding that after time for answering a pleading has expired, an amendment thereto may not be made as of right, but is a matter which is addressed to the discretion of the court and its decision thereon is not subject to review, except in case of manifest abuse, Hogsed v. Pearlman, 213 N. C., 240, 195 S. E., 789; Biggs v. Moffitt, 218 N. C., 601, 11 S. E. (2d), 870, where the rules have been recently restated.
While counsel for appellant are in agreement with these principles, it is said that when first passing on the motion to amend the court merely ruled, “Motion denied.” Even so, if it did not elsewhere appear in the record that the ruling was made in the discretion of the court, as it does, “the ruling of the court below in the consideration of an appeal therefrom is presumed to be correct.” Hogsed v. Pearlman, supra. See, also, Warren v. Land Bank, 214 N. C., 206, 198 S. E., 624. Moreover, in the judgment here the court below states that the motion to amend was denied “all in the court’s discretion.”
Again, it is said that matters in defense, which defendant desires to [148]*148plead, were inadvertently omitted in tbe original answer, and further, that in the course of the hearing of the two actions, evidence was adduced tending by its greater weight to support each of the matters covered by the proposed amendment. Hence, motion is made here that this Court, for the purpose of furthering justice, allow the amendment. The Supreme Court has the power to grant such motion. It is so specifically provided in C. S., 1414. But the factual situation here presented does not appear to merit favorable exercise of that power.
In this connection, among the statutes in this State pertaining to quo warranto, it is provided in C. S., 885, which originated in the Code of Civil Procedure of 1868, as section 371, that “if judgment is rendered in favor of the person alleged to be entitled, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office . . .” Thus is manifested the intention of the law-making power that one who is rightfully entitled to an office which another wrongfully claims and withholds shall not be required, as a condition precedent to an action to try title to that office, to do the vain thing of going through the formality of complying with the requirements for induction into the office. This principle of long standing in this State is in harmony with decisions of the courts of this and other States. Howerton v. Tate, 68 N. C., 546; Kreitz v. Behrensmeyer (Ill.), 36 N. E., 983; Booker v. Donohoe (Va.), 28 S. E., 584.
In Howerton v. Tate, supra, an action to recover offices of directors, for the State, on board of Western North Carolina Railroad, it was contended that since the Constitution, Art. Ill, section 10, requires the Governor in making such appointments to consult the Senate, and, as he failed to do so, the Howerton board, appointed by the Governor by and with advice of Council of State, has no valid claim to the road. The Court said: “The question is, should the Governor have sent nominations to the Senate after the General Assembly had in express terms taken the power of appointment from him and exercised it themselves in one instance, and by the presiding officers of the two branches in another instance? It would have been a mockery to have done so, for they had already said by their action, you have nothing to do with the matter. This action on the part of the Legislature dispensed with the necessity of sending in nominations, and left the Governor to pursue the law as far as he could.”
In Kreitz v. Behrensmeyer, supra, an action by officer 'de jure to recover of officer de facto, the emoluments of that office, the Illinois Court stated r “The law will not require a useless act, and by taking the oath of office, and filing bonds, as collector, for the several years, 1888-89-90, no purpose could have been subserved, as the contest was not determined [149]*149until after tbe full term had expired. Appellee’s right of recovery is therefore not affected by these considerations.”
In Booker v. Donohoe, supra, after reviewing some decisions of other courts, the Yirginia Court said: “It was not necessary, as conditions precedent to the recovery against the defendant, that plaintiff should have qualified himself to discharge the duties of the office to which he was elected, by taking the oaths and executing the bonds prescribed by law. To hold that the injured party must qualify as a condition precedent to his right of action against an intruder would be to allow the wrongdoer to take advantage of his own wrong . . .”
In the ease in hand, defendant J. D. Mackey in his answer admits that he has possession of the office in question, that demand has been made for the surrender of it, and that he refused and still refuses to surrender it to Way Kinsland or to any other person, for the reason that on 5 June, 1939, he had been appointed or elected by the board of aldermen for a term of two years, and, on 30 June, 1939, the board had no authority to remove him, without preferring charges and giving him an opportunity to be heard, which had not been done, and, hence, Way Kinsland had no right to the office.
Maintaining that attitude, the other reasons, set forth in the proposed amendment, for defendant’s refusal to surrender the office, if pleaded, would be wholly incompatible and inconsistent with those in the original answer. And, the fact that defendant surrendered the office on 3 September, 1940, before making the motion, does not change the situation. So, applying the principles, evidenced by the statute, C. S., 885, and cited decisions, the amendments, if allowed, would avail nothing to defendant.
Other assignments are considered, but, in view of the ruling above, treatment of them is deemed unnecessary.
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WiNBORNE, J.
Regarding motion 'of appellee to dismiss : It is noted that the two actions were tried together for convenience. They were not consolidated in the sense that they became, by order of court, one action. The parties are not the same. The purposes are not the same. The plaintiffs are not united in interest. Separate causes of action are alleged. Therefore, they could not be joined in the same action under C. S., 457. Hence, there should have been separate appeals. The amendment to Rule 19 of Rules of Practice in the Supreme Court, 213 N. C., 808, now Rule 19 (2), does not relieve the situation for appellants. That applies only when there are two or-more appeals in one action. In such event, it shall not be necessary to have more than one transcript. But, without intending to make a precedent of the case in this respect, we will pass the defect, and proceed to consider the case as constituted upon its merits.
Regarding the appeal in State ex rel. Way Kinsland v. J. D. Mackey:
Appellant’s assignments in the main revolve around the refusal of the court to allow amendments to his original answer to set up in defense additional reasons for his refusal to surrender the office of tax collector, as shown in the foregoing statement of facts.
That the judge or court may, before or after judgment, in furtherance of justice, allow any pleading to be amended when the amendment does not change substantially the claim or defense is well settled. C. S., 547. Also, decisions of this Court are uniform in holding that after time for answering a pleading has expired, an amendment thereto may not be made as of right, but is a matter which is addressed to the discretion of the court and its decision thereon is not subject to review, except in case of manifest abuse, Hogsed v. Pearlman, 213 N. C., 240, 195 S. E., 789; Biggs v. Moffitt, 218 N. C., 601, 11 S. E. (2d), 870, where the rules have been recently restated.
While counsel for appellant are in agreement with these principles, it is said that when first passing on the motion to amend the court merely ruled, “Motion denied.” Even so, if it did not elsewhere appear in the record that the ruling was made in the discretion of the court, as it does, “the ruling of the court below in the consideration of an appeal therefrom is presumed to be correct.” Hogsed v. Pearlman, supra. See, also, Warren v. Land Bank, 214 N. C., 206, 198 S. E., 624. Moreover, in the judgment here the court below states that the motion to amend was denied “all in the court’s discretion.”
Again, it is said that matters in defense, which defendant desires to [148]*148plead, were inadvertently omitted in tbe original answer, and further, that in the course of the hearing of the two actions, evidence was adduced tending by its greater weight to support each of the matters covered by the proposed amendment. Hence, motion is made here that this Court, for the purpose of furthering justice, allow the amendment. The Supreme Court has the power to grant such motion. It is so specifically provided in C. S., 1414. But the factual situation here presented does not appear to merit favorable exercise of that power.
In this connection, among the statutes in this State pertaining to quo warranto, it is provided in C. S., 885, which originated in the Code of Civil Procedure of 1868, as section 371, that “if judgment is rendered in favor of the person alleged to be entitled, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office . . .” Thus is manifested the intention of the law-making power that one who is rightfully entitled to an office which another wrongfully claims and withholds shall not be required, as a condition precedent to an action to try title to that office, to do the vain thing of going through the formality of complying with the requirements for induction into the office. This principle of long standing in this State is in harmony with decisions of the courts of this and other States. Howerton v. Tate, 68 N. C., 546; Kreitz v. Behrensmeyer (Ill.), 36 N. E., 983; Booker v. Donohoe (Va.), 28 S. E., 584.
In Howerton v. Tate, supra, an action to recover offices of directors, for the State, on board of Western North Carolina Railroad, it was contended that since the Constitution, Art. Ill, section 10, requires the Governor in making such appointments to consult the Senate, and, as he failed to do so, the Howerton board, appointed by the Governor by and with advice of Council of State, has no valid claim to the road. The Court said: “The question is, should the Governor have sent nominations to the Senate after the General Assembly had in express terms taken the power of appointment from him and exercised it themselves in one instance, and by the presiding officers of the two branches in another instance? It would have been a mockery to have done so, for they had already said by their action, you have nothing to do with the matter. This action on the part of the Legislature dispensed with the necessity of sending in nominations, and left the Governor to pursue the law as far as he could.”
In Kreitz v. Behrensmeyer, supra, an action by officer 'de jure to recover of officer de facto, the emoluments of that office, the Illinois Court stated r “The law will not require a useless act, and by taking the oath of office, and filing bonds, as collector, for the several years, 1888-89-90, no purpose could have been subserved, as the contest was not determined [149]*149until after tbe full term had expired. Appellee’s right of recovery is therefore not affected by these considerations.”
In Booker v. Donohoe, supra, after reviewing some decisions of other courts, the Yirginia Court said: “It was not necessary, as conditions precedent to the recovery against the defendant, that plaintiff should have qualified himself to discharge the duties of the office to which he was elected, by taking the oaths and executing the bonds prescribed by law. To hold that the injured party must qualify as a condition precedent to his right of action against an intruder would be to allow the wrongdoer to take advantage of his own wrong . . .”
In the ease in hand, defendant J. D. Mackey in his answer admits that he has possession of the office in question, that demand has been made for the surrender of it, and that he refused and still refuses to surrender it to Way Kinsland or to any other person, for the reason that on 5 June, 1939, he had been appointed or elected by the board of aldermen for a term of two years, and, on 30 June, 1939, the board had no authority to remove him, without preferring charges and giving him an opportunity to be heard, which had not been done, and, hence, Way Kinsland had no right to the office.
Maintaining that attitude, the other reasons, set forth in the proposed amendment, for defendant’s refusal to surrender the office, if pleaded, would be wholly incompatible and inconsistent with those in the original answer. And, the fact that defendant surrendered the office on 3 September, 1940, before making the motion, does not change the situation. So, applying the principles, evidenced by the statute, C. S., 885, and cited decisions, the amendments, if allowed, would avail nothing to defendant.
Other assignments are considered, but, in view of the ruling above, treatment of them is deemed unnecessary.
While the judgment appealed from herein is hereby affirmed, the cause remains open for further proceedings in accordance with the decision and suggested procedure set forth in McCall v. Webb, 135 N. C., 356, 47 S. E., 802, not inconsistent with this decision.
Judgment is
Affirmed.
Regarding appeal in Osborne v. Town of Canton:
Counsel for appellant state: “The question involved in this appeal is whether or not the town of Canton has the right to pay Way Kinsland the salary of $145.00 per month as tax collector of the town of Canton from June 30, 1939, to September 3, 1940, when he had only filed an oath of office and showed to the mayor a copy of the application for bond, but never tendered, filed or had the acceptance or approval of a bond by the municipal authorities?”
[150]*150Having held in the foregoing opinion in the companion case of “State ex rel. Way Kinsland v. Mackey” that, as of 30 June, 1939, Way Kins-land is rightfully entitled to the office of tax collector of the town of Canton, that is, tax collector de jure, the question here is answered “Yes” in so far as concerns and to the amount of salary which the town has withheld.
It is well settled that the right to the fees, salary and emoluments of a public office is incidental to the office, and that the one who is rightfully entitled to hold the office, that is, the officer de jure, is entitled to the fees, salary and emoluments pertaining to the office, Howerton v. Tate, 70 N. C., 161.
This is true even though another, who is in wrongful possession of the office, that is, one who is officer de facto, actually performs the duties of the office pending adjudication of title to the office. It is so provided by statute in this State, C. S., 879, 878, 880, 885, and so held in Howerton v. Tate, supra.
In the Howerton case, supra, an action in which Howerton as president de jure of the Western North Carolina Railroad, under authority of decision in Howerton v. Tate, 68 N. C., 546, sued to recover of Tate, president de facto, the salary of that office received by him during period title was in controversy, the Court said: “Howerton, being the president de jure of the road, was entitled to receive the salary attached to that office; but Tate having usurped the same and having received a portion of, if not all of the salary, without the assent of Howerton, either expressed or implied, he must be held as having received it for the use of Howerton.”
In C. S., 879, it is provided that when in an action the title to an office is involved, the defendant, being in possession of the office and discharging the duties thereof shall continue therein pending the action, and receive the emoluments thereof, and may not be interfered with by injunction. The public good requires that the office function. Howerton v. Tate, 70 N. C., 161. But, before defendant may answer or demur to the complaint, it is provided in C. S., 878, that he must execute and file as indicated an undertaking in amount specified, which may be increased from time to time in the discretion of the judge, conditioned that he, defendant, pay to plaintiff “all such cost and damages, including damages for the loss of such fees and emoluments as may or ought to have come into the hands of the defendant, as the plaintiff may recover.” It is further provided in C. S., 880, that plaintiff may by motion obtain an order to require defendant to give bond as specified in section 878. It is therein further provided that if defendant shall give the undertaking and if judgment is for plaintiff, the court shall render judgment against defendant and his sureties for costs and damages, in-[151]*151eluding loss of fees and salary. McCall v. Webb, 135 N. C., 356, 47 S. E., 802. Tbe principle is fair and just. One wbo is so in possession of an office and asserting title thereto, is charged with and has knowledge that, if he lose in contest for title to the office, he will lose the fees, salary and emoluments, even though he has performed the duties of the office.
Further, the authorities generally agree that where the salary has been paid to the officer de facto, it cannot be collected from the municipality again by the officer de jure, for the reason of public policy, but the remedy of the rightful claimant is against the one who has wrongfully received the money. See Annotations 55 A. L. R., 997; 59 A. L. R., 117.
But where, by judgment, title has been determined and the salary of the office has been paid to neither the de jure nor the de facto officer, the right of action of the de jure officer is not against the de facto officer, but against the public authority whose duty it is to pay the salary. Whitaker v. Topeka (1900), 9 Kan. App., 213, 59 P., 668.
Applying these principles to the case in hand, the town of Canton can only be required to pay the salary of the tax collector once. If it has paid to J. D. Mackey any part of the salary due in the period during which title to the office was in controversy, it may not again be required to pay, but, that part of the salary withheld is due to Way Kinsland as officer de jure, and may not now be paid to J. D. Mackey.
In accordance with the principles here set forth, the judgment below dissolving the injunction is
State ex rel. Kinsland v. Mackey
Osborne v. Town of Canton