Shuford v. . Yarbrough

Supreme Court of North Carolina

Shuford v. . Yarbrough

150 S.E. 618, 198 N.C. 5, 1929 N.C. LEXIS 390

CourtSupreme Court of North Carolina

DecidedNovember 27, 1929

StatusPublished

Cited by7 cases

This text of 150 S.E. 618 (Shuford v. . Yarbrough) 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

Shuford v. . Yarbrough, 150 S.E. 618, 198 N.C. 5, 1929 N.C. LEXIS 390 (N.C. 1929).

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Opinion

*6 Adams, J.

A defendant may demur to the complaint when it appears upon tbe face thereof that . . . there is' a defect of parties plaintiff or defendant, or that several causes of action have been improperly united. C. S., 511. If it appears from the complaint that there is a misjoinder both of parties and of causes of action and a demurrer is interposed, not only will the demurrer be sustained, but the action will be dismissed. Bank v. Angelo, 193 N. C., 576. But if the demurrer is sustained for the reason that several causes of action have been improperly united, the several causes may be divided into as many actions as may be necessary for their proper determination. C. S., 516; Gattis v. Kilgo, 125 N. C., 133.

The defendants demurred to the complaint for an alleged defect of parties plaintiff and defendant, for an alleged misjoinder of causes of action, and for the alleged insufficiency of the complaint to state a cause of action. ¥e need not discuss each of these phases in its relation to the allegations in the complaint; the demurrer admits the allegation that in order to pay the creditors it is necessary to sue the directors. There is no misjoinder of parties, and there being no fatal misjoinder of causes of action the demurrer was properly overruled. Trust Co. v. Peirce, 195 N. C., 717. Even if two causes of action are to some extent inconsistent, the complaint is not always on that account demurrable. Worth v. Trust Co., 152 N. C., 242.

The judgment, however, is not free from error. If a judgment overruling a demurrer is affirmed on appeal to the Supreme Court the demurring party may file an answer at any time within ten days after the lower court receives the certificate of the Supreme’ Court. C. S., 515. This is a statutory right of which the trial court cannot deprive him. There is no finding that the demurrer was frivolous. C. S., 599. The judgment is affirmed to the extent of overruling the demurrer; the remainder of it is stricken out, and as .thus modified the judgment is affirmed.

Modified and affirmed.

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*6 Adams, J.

A defendant may demur to the complaint when it appears upon tbe face thereof that . . . there is' a defect of parties plaintiff or defendant, or that several causes of action have been improperly united. C. S., 511. If it appears from the complaint that there is a misjoinder both of parties and of causes of action and a demurrer is interposed, not only will the demurrer be sustained, but the action will be dismissed. Bank v. Angelo, 193 N. C., 576. But if the demurrer is sustained for the reason that several causes of action have been improperly united, the several causes may be divided into as many actions as may be necessary for their proper determination. C. S., 516; Gattis v. Kilgo, 125 N. C., 133.

The defendants demurred to the complaint for an alleged defect of parties plaintiff and defendant, for an alleged misjoinder of causes of action, and for the alleged insufficiency of the complaint to state a cause of action. ¥e need not discuss each of these phases in its relation to the allegations in the complaint; the demurrer admits the allegation that in order to pay the creditors it is necessary to sue the directors. There is no misjoinder of parties, and there being no fatal misjoinder of causes of action the demurrer was properly overruled. Trust Co. v. Peirce, 195 N. C., 717. Even if two causes of action are to some extent inconsistent, the complaint is not always on that account demurrable. Worth v. Trust Co., 152 N. C., 242.

The judgment, however, is not free from error. If a judgment overruling a demurrer is affirmed on appeal to the Supreme Court the demurring party may file an answer at any time within ten days after the lower court receives the certificate of the Supreme’ Court. C. S., 515. This is a statutory right of which the trial court cannot deprive him. There is no finding that the demurrer was frivolous. C. S., 599. The judgment is affirmed to the extent of overruling the demurrer; the remainder of it is stricken out, and as .thus modified the judgment is affirmed.

Modified and affirmed.

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150 S.E. 618, 198 N.C. 5, 1929 N.C. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shuford-v-yarbrough-nc-1929.

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