Gaither Corp. v. Skinner
| Decision Date | 23 September 1953 |
| Docket Number | No. 27,27 |
| Citation | 238 N.C. 254,77 S.E.2d 659 |
| Court | North Carolina Supreme Court |
| Parties | GAIHER CORPORATION, v. SKINNER et al. |
Barden, Stith & Mcotter, New Bern, and JOhn H. Hall, Elizabeth City, for defendant, appellant.
LeRoy & Goodwin, Elizabeth City for C. R. Hopkins, appellee.
Worth & Horner, Elizabeth City, for plaintiff.
We concur with the view of the court below that C. R. Hopkins is not a necessary party to the action which the Gaither Corporation has instituted against defendant Skinner for damages for faulty and defective material used by him in the construction of plaintiff's building in breach of the terms of the contract entered into between plaintiff and Skinner. We think the action of the court in dismissing Hopkins from the action should not be held for error.
It may be conceded that plaintiff might have maintained action against Hopkins on his sub-contract with Skinner, as one made for the benefit of the plaintiff, Brown v. Bowers Construction Co., 236 N.C. 462, 73 S.E.2d 147, and that Hopkins might have been a proper party in a suit involving the liability of both, but that would not entitle appellant to reversal of the order of Judge Bone dismissing Hopkins from the present action which plaintiff has instituted against defendant Skinner. Spruill v. Bank of Plymouth, 163 N.C. 43, 79 S.E. 262; Aiken v. Rhodiss Mfg. Co., 141 N.C. 339, 53 S.E. 867. 'The making of new parties defendants where they are not necessary is a matter within the discretion of the trial judge, and his refusal is not reviewable.' Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859. McIntosh, Prac. and Proc., Sec. 209, p. 184; Coibert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231.
The plaintiff has elected to pursue his action against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his sub-contractor projected into the plaintiff's lawsuit. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397.
The exact question here presented does not seem to have been heretofore decided by this Court. However, in ...
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Hoke Cnty. Bd. of Educ. v. State
...to join the General Assembly as a necessary party. See N.C.G.S. § 1A-1, Rule 19(a) and (d) ; see also Gaither Corp. v. Skinner , 238 N.C. 254, 256, 77 S.E.2d 659, 661 (1953) ("Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not......
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Hoke Cnty. Bd. of Educ. v. State
... ... shape that relief as a matter of discretion.'" ... Sara Lee Corp. v. Carter , 351 N.C. 27, 36 (1999) ... (quoting Roberts v. Madison County Realtors ... Ass'n , ... See ... N.C. G.S. §1A-1, Rule 19(a) and (d); see also ... Gaither Corp. v. Skinner , 238 N.C. 254, 256, 77 S.E.2d ... 659, 661 (1953) ("Necessary or indispensable ... ...
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Johnson v. Lucas, COA03-1358.
...Monroe Constr. Co. v. Guilford County Bd. of Educ., 278 N.C. 633, 638-39, 180 S.E.2d 818, 821 (1971) (citing Gaither Corp. v. Skinner, 238 N.C. 254, 256, 77 S.E.2d 659, 661 (1953)). Rights of the necessary party must be ascertained and settled before the rights of the parties to the suit ca......
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Vogel v. Reed Supply Co.
...formula. Plaintiff landowner relies on Brown v. Bowers Construction Co., 236 N.C. 462, 73 S.E.2d 147 (1952); Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659 (1953); and Quenby Corp. v. Frank H. Conner Co., 272 N.C. 208, 158 S.E.2d 18 (1967). The Gaither and Quenby decisions were based......