City of Wilmington v. Board of Educ. of New Hanover County

• Decision Date: 20 May 1936
• Docket Number: 602.
• Citation: 185 S.E. 767,210 N.C. 197
• Parties: CITY OF WILMINGTON v. BOARD OF EDUCATION OF NEW HANOVER COUNTY.
• Court: North Carolina Supreme Court

185 S.E. 767

210 N.C. 197

CITY OF WILMINGTON v. BOARD OF EDUCATION OF NEW HANOVER COUNTY.

No. 602.

Supreme Court of North Carolina

May 20, 1936

Action by the City of Wilmington against the Board of Education of New Hanover County. From an order denying defendant's motion to dismiss the action and allowing plaintiff to make the Board of Commissioners of New Hanover County a party defendant and amend the complaint, defendant appeals.

Appeal dismissed.

This was a civil action brought by the city of Wilmington to recover from the board of education of New Hanover county the sum of $1,199.43 for improvements made on its streets and sidewalks abutting on the property of the defendant used for a high school, to have said amount declared a lien on the said property, and to foreclose said lien by a sale to pay said debt.

The case came on for hearing, and the defendant moved, on the pleadings, for judgment dismissing the action. Whereupon the court, upon motion of the plaintiff, entered an order denying the motion of the defendant, and allowing the plaintiff to make the board of commissioners of New Hanover county a party defendant and to amend its complaint so as to seek to determine the amount due by the board of education on the assessments made upon its property, and to pray that a writ of mandamus issue to collect the amount so ascertained.

To the foregoing order the defendant excepted, and appealed to the Supreme Court.

Appeal from order, denying defendant's motion to dismiss action and allowing plaintiff to make additional party defendant and amend complaint, on ground that amended complaint would allege no cause of action against original defendant, must be dismissed as premature.

Appeal from Superior Court, New Hanover County Parker, judge.

C.D Hogue, of Wilmington, for appellant.

Wm. B Campbell and George L. Peschau, both of Wilmington, for appellee.

PER CURIAM.

It very rarely happens that the making of additional parties proves prejudicial, and hence orders making such parties are discretionary with the trial court, and are not reviewable upon appeal. Tillery v. Candler, 118 N.C. 888, 24 S.E. 709; Bernard v. Shemwell, 139 N.C. 446, 52 S.E 64; Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890. By proper amendment new parties may be brought into a pending action. Dobson v. Southern Ry. Co., 129 N.C. 289, 40 S.E. 42.

A judge of the superior court has within his sound discretion the...