Glahn v. DeRossett

• Decision Date: 31 January 1877
• Court: North Carolina Supreme Court
• Parties: HENRY VON GLAHN and others v. A. J. DeROSSETT and others.

76 N.C. 292

HENRY VON GLAHN and others

v.A. J. DeROSSETT and others.

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, tried at Fall Term, 1876, of BRUNSWICK Superior Court, before McKoy, J.

The action was commenced in New Hanover and removed to Brunswick on affidavit of plaintiff.

As the subject of the decision of this Court is a question of pleading a statement of the facts is unnecessary. The demurrer of defendant Kidder was sustained by the Court below and plaintiffs appealed.

Messrs. W. S. & D. J. Devane and D. L. Russell, for plaintiffs .

No counsel for defendants.

PEARSON, C. J.

In Von Glahn v. Harris, 73 N. C. 323, it is held that one creditor could not maintain an action against one stockholder; but that the action should be in the nature of a “creditors bill,” in the name of one or more of the creditors in behalf of themselves and all of the other creditors who may choose to become plaintiffs against all of the stockholders.

Accordingly this action is by Von Glahn and the other creditors against DeRossett, Kidder and others, who are all of the stockholders known to plaintiffs, with leave to make defendants any other stockholders who may become known to the plaintiffs.

DeRossett and the others defend by way of answer, except Kidder, who defends by way of demurrer.

The case now comes before us upon the demurrer of Kidder.

This is a novel mode of procedure and we are not willing to allow the case to be split up in that way. The defendants are under a joint liability; their interest in the questions involved is identical and much obscurity and confusion will result from a severance in the mode of defence. When there is but one defendant he is not allowed to demur and also to answer; after the demurrer is overruled he can put in an answer but he cannot defend in both modes at the same time; that would be double pleading in a way not provided for by the statute of Anne.

Here we have several defendants whose liability is joint and whose interest in the question is identical. To allow a severance in the mode of defence would let in all of the inconveniences which the rule of the common law in regard to practice, by which double pleading is not allowed, was intended to exclude. For illustration; If the demurrer of the defendant Kidder be disposed of, that will decide the merits of the case, and the defendants DeRossett and others will not have had an opportunity of being heard by counsel. If the demurrer should be overruled, the case will in effect be decided against them, and if it be sustained the case will be dismissed as to Kidder and they will be left in an anomalous condition.

By the old equity practice,...