Grady v. Warren

Adams, J.

Tbe plaintiff filed bis complaint in an action entitled as above, to wbicb tbe defendants demurred. For misjoinder of parties and causes of action Judge Cowper sustained tbe demurrer and dismissed tbe action. On appeal tbe judgment was affirmed, tbis Court observing tbat tbe act of 1931 amending C. S., 456 (Pub. Laws 1931, cbap. 334, sec. 2), applies only wben tbe plaintiff is in doubt as to tbe persons from whom be is entitled to redress on bis cause of action.

Grady v. Warren, 201 N. C., 693 .

Wben tbe demurrer was sustained for misjoinder of parties and causes tbe action was dismissed.

Bank v. Angelo, 193 N. C., 576 ;

Harrison v. Transit Co., 192 N. C., 545 ;

Robinson v. Williams, 189 N. C., 256 .

Witbin ten days after tbe receipt of tbe certificate of tbe Supreme Court tbe plaintiff moved on three days’ notice for leave to amend tbe complaint by striking out all allegations relating to tbe Citizens Bank and by striking out tbe Citizens Bank as a party defendant. Judge Harris properly denied tbe motion as a matter of law.

Tbe right to amend tbe complaint upon three days notice under 0. S., 515, wben a demurrer is sustained, has no application to cases in wbicb tbe action has been dismissed for misjoinder of parties and causes. In such event tbe action is not pending and tbe court is without jurisdiction to allow tbe amendment. Judgment Affirmed. .