Davis v. Whitehurst
| Decision Date | 22 September 1948 |
| Docket Number | No. 94.,94. |
| Parties | DAVIS et al. v. WHITEHURST et al |
| Court | North Carolina Supreme Court |
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Appeal from Superior Court, Buncombe County; Geo. A. Shuford, Special Judge.
Action by W. H. Davis, and others against A. W. Whitehurst and others, to recover judgments for the amounts alleged to be due the several plaintiff's on open account, and to enjoin proceedings in another action pending final judgment. From an adverse judgment, plaintiffs appeal.
Judgment affirmed as modified and cause remanded.
Civil action to recover judgments for the amounts alleged to be due the several plaintiffs on open account and to enjoin further proceedings in an action in Madison County, pending a final judgment herein, heard on demurrer and motion to vacate consent judgment against defendant A. C. Wheeler, entered by defendants other than Wheeler.
The defendant Wheeler is not a party to the demurrer or to the motion to vacate. "Defendants", as hereinafter used, refers only to those defendants who were parties thereto, the appellees therein.
The plaintiffs allege that the defendants own the Montaqua Hotel in Hot Springs, N. C, that they entered into a contract with A. C. Wheeler to operate the same on a 50-50 basis, that thereafter plaintiffs and others, each on his own behalf, sold to Wheeler "for and on behalf of said hotel, and for the operation of said hotel by 'said owners through said operator" merchandise in the several amounts stated in the complaint, and that there is now pending in Madison County a civil action between said defendants and Wheeler concerning said contract and involving a number of charges and countercharges.
They pray judgment that each plaintiff and such other creditors as may join herein, recover of defendants and Wheeler the amount alleged to be due him, and that further proceedings by defendants in the Madison County cause be enjoined, pending final determination of this action.
Thereafter a consent judgment was entered making additional parties plaintiff, adjudging that each plaintiff recover of A. C. Wheeler the amount therein specified, and directing execution against specified personal property. Defendants were not parties to this judgment.
The defendants moved the court to vacate the consent judgment and recall execution issued thereon. In their motion they make it appear that the property described in the judgment against which execution is outstanding is the property of said hotel and is now in the hands of a receiver appointed in the Madison County case.
The clerk granted the motion and entered judgment accordingly and plaintiffs appealed. Thereupon the defendants demurred to the complaint for misjoinder of parties and causes of action, and plaintiffs then moved to dismiss the demurrer for that it is frivolous and interposed only for the purpose of hindering and delaying plaintiffs in the prosecution of their action. The clerk denied the motion and plaintiffs appealed.
The cause came on for hearing in the court below on the demurrer and the motions interposed by defendants and plaintiffs. The court, after due hearing, (1) overruled plaintiffs' motion to dismiss the demurrer, (2) sustained the demurrer, and (3) affirmed the judgment of the clerk setting aside the consent judgment against A. C. Wheeler and recalling the execution thereon. Plaintiffs excepted and appealed.
L. E. Rudisill, of Hot Springs, for plaintiffs-appellants.
J. M. Baley, Jr., of Marshall, and Jones & Ward, of Asheville, for defendants-appellees.
This action is not in the nature of a creditors' bill. 14 A.J. 679; Hancock v. Wooten, 107 N.C. 9, 12 S.E. 199, 11 L.R.A. 466. It is an action at law in which the cause of action of each plaintiff is several. Neither has any interest in the claim of the other. Hence, there is a misjoinder of parties and causes of action. Beam v. Wright, 222 N.C. 174, 22 S.E.2d 270; Wingler v. Miller, 221 N.C. 137, 19 S.E.2d 247; Frederick v. Southern Fidelity Mut. Insurance Co., 221 N.C. 409, 20 S.E.2d 372; Osborne v. Town of Canton, 219 N.C. 139, 13 S.E.2d 265; Holland v. Whittington, 215 N.C. 330, 1 S.E.2d 813; Smith v. Greensboro Joint Stock Land Bank, 213 N.C. 343, 196 S.E. 481; Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84.
It is true plaintiffs allege that the contract between defendants and A....
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