Town of Morganton v. Hutton & Bourbonnais Co.

101 S.E.2d 679, 247 N.C. 666, 1958 N.C. LEXIS 294

• Court: Supreme Court of North Carolina
• Decided: January 31, 1958
• Docket: 307
• Status: Published

Opinion

Johnson, J.

On authority of the decision in Edmondson v. Henderson, 246 N.C. 634, 99 S.E. 2d 869, and cases there cited, it is apparent that we have here a fatal defect of necessary parties. In the Edmondson case we had for construction a last will and testament. Here we have, among other questions, the interpretation and construction of a judgment and judgment roll in a condemnation proceeding. There appears to be no practical difference between the two cases so far as the question of parties is concerned.

Whenever, as here, a fatal defect of parties is disclosed, the Court should refuse to deal with the merits of the case until the absent parties are brought into the action, and in the absence of a proper motion by a competent person, the defect should be corrected by ex mero motu ruling of the Court. Peel v. Moore, 244 N.C. 512, 94 S.E. 2d 491; Edmondson v. Henderson, supra.

The plaintiff argues with considerable cogency that the deed from the defendant’s former cotenants, notwithstanding the exception clause contained therein, is sufficient in form when properly interpreted and construed to divest the grantors of all title and interest of every kind in the property. As to the question thus posed, we intimate no opinion, other than to say that the heirs or those who have succeeded to the rights, if any, of the grantors are entitled to be heard on the question of interpretation and construction, and should be made parties to this action.

The Declaratory Judgment Act provides (G.S. 1-260) that “all persons shall be made parties who have or claim any interest which would be affected by the declaration, . . .” True, this section of the statute goes on to say that “no declaration shall prejudice the rights of persons not parties to the proceeding.” However, this latter portion of the statute ordinarily should not be relied on by the courts as authority to proceed to judgment without the presence of all necessary parties, when in the course of a trial the absence of such parties becomes apparent. When, as here, decision requires the construction of formal legal documents, vitally affecting the rights of several persons, some parties to the action and some not, can it be said with assurances of verity that the lower court may proceed to adverse judgment and the appellate court to affirmation without prejudice to the rights of those not made parties? It suffices to say that when and if the absent parties should assert their rights in an independent action, they would be at grips with the doctrine of stare decisis.

The appellant brief filed here by Mrs. Doris Hutton Councill is not accordant with our rules of appellate procedure. Being unsupported by exception or appeal, her brief will be stricken from the file.

The case will be remanded for such further proceedings as the law directs and the rights of the parties require.

Remanded.