Teague v. Siler City Oil Co.

DeNNY, J.

A demurrer should be sustained where there is a mis-joinder of parties and causes of action, and the court is not authorized in such cases, to direct a severance of the respective causes of action for trial under the provisions of G.S. 1-132.

Moore County v. Burns, 224 N.C. 700 , 32 S.E. 2d 225 ;

Southern Mills, Inc., v. Yarn Co., 223 N.C. 479 , 27 S.E. 2d 289 ;

Wingler v. Miller, 221 N.C. 137 , 19 S.E. 2d 247 ;

Bank v. Angelo, 193 N.C. 576 , 137 S.E. 705 ;

Rose v. Warehouse Co., 182 N.C. 107 , 108 S.E. 389 ;

Taylor v. Ins. Co., 182 N.C. 120 , 108 S.E. 502 ;

*67 Roberts v. Mfg. Co., 181 N.C. 204 , 106 S.E. 664 ;

Thigpen v. Cotton Mills, 151 N.C. 97 , 65 S.E. 750 ; McIntosh, N. C. Practice and Procedure, p. 467.

There is no allegation to the effect that while the title to the real estate involved in the action is in Owen H. Teague, the coplaintiff, Helen Teague, has an equity in said real estate and the improvements erected thereon, as was the case in Walker v. Oil Co., 222 N.C. 607 , 24 S.E. 2d 254 . The same is true with respect to the personalty which is alleged to have been destroyed.

The appellees contend, however, that since the defendants filed answers to the original complaint, it would be necessary for them to withdraw those answers by leave of court, before they would have the right to demur to the amended complaint on the ground that there is a misjoinder of parties and causes of action, citing Ezzell v. Merritt, 224 N.C. 602 , 31 S.E. 2d 751 . We do not concur in this view. When the plaintiffs filed an amended complaint, the defendants had the right to elect whether to answer or demur. In Ezzell v. Merritt, supra, the defendant undertook to demur to the original complaint on the ground of a misjoinder of parties and causes of action, after he had filed an answer thereto, without withdrawing his answer by leave of court. A defendant is not permitted, under our practice, to answer and demur at the same time, Rosenbacher v. Martin, 170 N.C. 236 , 86 S.E. 785 , except as to the jurisdiction of the court or to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. G.S. 1-134;

Cherry v. R. R., 185 N.C. 90 , 116 S.E. 192 . However, these defendants have not filed ansv'ers to the amended complaint, and we think the interposition of the demurrers was well advised.

For the reasons stated, the or&er of the court below overruling the demurrers interposed by the defendants, is Reversed.