Emry v. Parker

• Decision Date: 22 November 1892
• Parties: EMRY et al. v. PARKER et al.
• Court: North Carolina Supreme Court

16 S.E. 236

111 N.C. 261

EMRY et al. v. PARKER et al.

Supreme Court of North Carolina

November 22, 1892

Appeal from superior court, Halifax county; G. H. BROWN, Jr., Judge.

Action by T. L. Emry and others against J. H. Parker and others. From an order of the superior court, issued at the instance of plaintiffs, making J. J. Daniel a party defendant, the original defendants appeal. Dismissed.

An appeal cannot be taken from an order of the trial court, at the instance of plaintiffs, making a person a party defendant in an action, where there is nothing in the record which discloses that his joinder can affect any substantial right of his codefendants.

T. N Hill and Batchelor & Devereux, for appellants.

R. O Burton and L. P. McGehee, for appellees.

SHEPHERD C.J.

At the instance of the plaintiffs a notice was issued to J. J Daniel to show cause why he should not be made a party defendant, and, said Daniel making no resistance, an order to that effect was made by his honor. From this order the original defendants appealed, and the only question to be considered is whether the appeal can be entertained at this stage of the action.

An appeal cannot be taken from an order of the superior court which does not determine the action, and which does not deprive the appellant of any substantial right which he might lose if the order is not reviewed before final judgment. Under such circumstances, the party may have his exception entered of record, and, if necessary, may have it considered by the supreme court on appeal after the final judgment. Clement v. Foster, 99 N.C. 255, 6 S.E. Rep. 186; Welch v. Kinsland, 93 N.C. 281; Hailey v. Gray, Id. 195. Tested by the foregoing rule, it is entirely clear that the appeal was prematurely taken, as it is well settled by this court in the language of PEARSON, C.J., that "a misjoinder of one who is not a necessary party is surplusage. *** As to the unnecessary parties plaintiff it is their own concern to be made liable to costs. As to the unnecessary parties made defendants, they are allowed to disclaim, and have judgment for costs." Green v. Green, 69 N.C. 294; Righton v. Pruden, 73 N.C. 61; Hargrove v. Hunt, Id. 24. Daniel does not object to being joined as a defendant, and if he is an unnecessary party it is "surplusage;" and if he is an "improper" party there is nothing whatever in the record which discloses that his joinder can in the least affect any substantial right of his codefendants. Whether the making or refusal to make additional parties may not, in some cases, affect a substantial right, and therefore become the subject of immediate appeal, are questions not presented in the record. These questions are discussed in previous decisions of this court, and need not now be considered by us. Dismissed.

AVERY J., (dissenting.)

It is insisted that the appeal in this case should be dismissed upon the ground that no order allowing or refusing a motion to make an additional party defendant affects a substantial right. In Merrill v. Merrill, 92 N.C. 660, MERRIMON J., delivering the opinion of the court, stated the principle applicable to this case very clearly and tersely when he said: "Who shall and who shall not be made additional parties are questions, in many cases, of serious moment, and we can see no reason why the decision of a question of law arising in the exercise of the power to make them shall not be reviewed like the decision of any other question of law affecting the merits in the progress of the action. There is nothing in the statute nor in the nature of the power that forbids it, and justice may require it." In Keathly v. Branch, 84 N.C. 204, SMITH, C.J., after nothing the fact that the case of Rollins v. Rollins, 76 N.C. 264, had been reaffirmed in Lytle v. Burgin, 82 N.C. 301, quotes with approval the rule of practice stated in the former case, and the reason given by the court for its adoption. The rule is that in all controversies involving a question as to the title of land every landlord has the right to defend, either with or without the tenant, and that under the term "landlord" all persons have a right to come in as parties "whose title was connected or consistent with that of the occupier, and is divested or disturbed by any claim adverse to such possession," even though such persons may never have previously exercised their right of dominion or ownership. It was also explicitly declared to be the duty of the court to pass upon the application "as a question of right in law, upon the interest of the party being manifested by affidavit." It is settled, therefore, as firmly as precedent can effect a final determination of a question, that any person whose title to or interest in the thing in controversy is consistent with that of one of the parties litigant, and may be divested or disturbed by granting the judgment demanded in the complaint or a counterclaim, has such an interest in the action that his affidavit setting forth his relation to the controversy is, if uncontradicted, to be treated, on motion to make him a party, as prima facie evidence of a substantial right in the applicant to become a party. Rollins v. Rollins, supra; Lytle v. Burgin, and Keathly v. Branch, supra. If the refusal of a judge to grant the motion is a denial of a substantial right, it must follow inevitably that the granting of the same motion so "affects a substantial right claimed" as to entitle the party aggrieved to demand immediate review of the order, though it may be that he may at his election enter an exception to the ruling, and await the final determination of the action before assigning it as error. The questions involved in this controversy, as distinguished from the thing (the goods) in dispute, is whether the deed of trust which purported to convey property that is the subject of the action to J. H. Parker, as trustee, was registered before that subsequently executed to J. J. Daniel, as trustee, and, if so, whether it was executed to hinder, delay, or defraud creditors. If the deed to Daniel was registered before that previously executed, as to which the pleadings raised an issue of fact, or if the deed of trust to Parker should be declared fraudulent and void, then, in either event, Daniel would be declared, as trustee, the legal owner of the property in controversy; and if it is to be subjected to the payment of plaintiff's debt, as demanded in the complaint, it would become the duty, as it would unquestionably be the right, of Daniel to make the sale, and receive his commissions for such service. Daniel is therefore "a necessary party to the complete determination of the questions involved." Code, § 184; Wade v. Saunders, 70 N.C. 277; Ten Broeck v. Orchard, 74 N.C. 409; Hancock v. Wooten, 107 N.C. 9, 12 S.E. Rep. 199. The notice to Daniel to show cause why he should not be made a party was an invitation to make himself a party plaintiff if he chose, or notice of a motion to make him a party defendant in invitum. It was therefore a substantial compliance with the requirement of the statute (Code, § 185) to serve such notice on him. McCormac v. Wiggins, 84 N.C. 278. Having pursued the course pointed out by the statute as to the manner of making...