Green v. Green

• Decision Date: 30 June 1873
• Court: North Carolina Supreme Court
• Parties: BEADY A. GREEN and J. B. GREEN v. GEORGE J. GREEN.

69 N.C. 294

BEADY A. GREEN and J. B. GREEN

v.GEORGE J. GREEN.

Supreme Court of North Carolina.

June Term, 1873.

The misjoinder of unnecessary parties, either as plaintiffs or defendants, is mere surplusage, and under the liberal system of pleading introduced by our Code of Civil Procedure, is not a fatal objection.

A reference made by the Court to take an account to be used in an action pending before it, is not such a reference as can be ended at the election of either party, upon the notice prescribed in the Code of Civil Procedure, sec. 247.

( Maxwell v. Maxwell, 67 N. C. Rep. 383, cited and approved.)

CIVIL ACTION for the recovery of real property, tried before Buxton, J., at Spring Term, 1873, of UNION Superior Court.

The action was originally brought by one Tilmon Green, to Fall Term, 1869. He having died, the present plaintiffs, B. A. and J. B. Green, devisees under his will, come into Court, and make themselves parties plaintiff.

One of the defenses set up in the answer being of an equitable character, in order to ascertain the amount for which the land was bound, at Fall Term, 1870, a reference was ordered by the Court to the Clerk and S. H. Walkup, Esq., to take an account in the cause. This was done and a report made, which at Spring Term, 1871, was re-referred The parties were notified to attend on the 13th of August, 1872, before the referees for the purpose of taking the account, but the defendant not appearing, (having been notified by the wrong name) a postponement was had until the 10th of September, 1872, and the parties were again notified. On the 2nd of September, the following written notice was served by the defendant on the plaintiffs. After stating the case, “the referees, S. H. Walkup and G. W. Flow, heretofore appointed in said action, having failed to make their report within the time prescribed by law, you are hereby notified, that I, elect to end said reference, and desire to proceed as though no reference had been ordered.

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                ¦August 31st, 1872.¦(Signed)¦G. J. GREEN.”¦
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The parties being present before the referees on the 10th of September, 1872, the counsel for the defendant produced before the referees the foregoing notice duly served upon the plaintiffs, and objected to any further proceeding under the reference, on the ground that the reference was terminated by service of the notice in accordance with C. C. P., sec. 247, chap. 5, title 10, the referees having failed to make their report within sixty days.

The objection was overruled, and the referees proceed to take the account. Defendants excepted, and entered their protest in the proceedings.

The referees reported to Fall Term, 1872, at which term the defendants was allowed until the 1st of Febuary, 1873, to file exceptions. At Spring Term, 1873, no exceptions being filed, and the Court refusing to grant further time for that purpose, the plaintiffs moved for a confirmation of the report; whereupon, the defendant renewed the motion made before the referees to set aside the report for the reason apparent on its face, to-wit: the reference had ended upon the receipt of the notice alluded to. His Honor being of opinion, that the provision of sec. 247, C. C. P., were not applicable to a reference to state an account, declined to set aside the report, but allowed the motion of the plaintiffs to confirm the same. From which judgment the defendant appealed.

Upon the argument, a misjoinder of parties plaintiff was relied to defeat the action. His Honor below was against the defendant on this point.

Bailey, for appellant , submitted:

When the case was first constituted in Court, Tilmon Green being plaintiff, the defendant's answer and the reply raised an issue on the defendant's title; but when Tilmon Greene died and the present plaintiffs came into Court as such, the defendant filed a supplemental answer denying their title. This, I submit, had the effect to shift the issue from the defendant's title to that of the present plaintiffs.

This being so, a reference was erroneous, and the transcript shows a re-reference after the present plaintiffs became such of record.

This was not a reference by consent, such a reference must be only upon the written consent of the parties; nor is the present issue made by the substituted supplemental answer the subject of reference under the Code, sec. 245. The defendant's notice to elect to end the reference was brought to the attention of the Court, but while that may not have been the proper remedy, and it is not insisted that it was, it appears from the case that the defendant moved to set aside the report--such is the motion, and if a proper one should be allowed, though based on a wrong reason.

If the Court had no power, as it is submitted it had not to refer the case after B. A. and J. B. Green became plaintiffs, then it ought at the earliest moment to have arrested its steps and granted the motion to set aside the report. For though, coram non, yet it is error to confuse a litigation in this way, according to the reasoning deducible from Dulin v. Howard, 66 N. C. Rep. 433. How far the rights of litigants may become confused and entangled by encumbering the record with reports and confirmations thereof which the Court had no right to receive or make, it is impossible to conjecture.

But it is the expressed policy of the law as shown by the adoption of the Code system to simplify procedure and disembarrass litigation from all entangling matter.

By the supplemental answer the...