Opinion
(Filed 1 May, 1929.)
Pleadings D b — Where only one defendant is served with summons and the action is against him solely, demurrer for misjoinder properly overruled.
Where an action is instituted against two defendants and only one of them is served with summons and the action is solely against the one served and this appears from the face of the complaint, a demurrer for misjoinder of parties and causes of action is properly overruled.
APPEAL by C. A. Burgess from a judgment of Harding, J., overruling a demurrer to the complaint. From MECKLENBURG. Affirmed.
Lewis Lewis for appellant.
Pharr Currie for appellee.
This is an action to recover possession of a motor car. The plaintiff alleges that on 9 June, 1928, the Asheville Overland-Knight, Incorporated, sold and delivered a Whippet coupe to T. B. Drake upon a conditional sales contract which was duly recorded in Buncombe County; that on 29 June, 1928, the plaintiff for value bought the note which Drake had executed to secure a part of the purchase price, before its maturity and without notice of any equities against the collection of the note; that after Drake's conviction for a breach of the prohibition laws the car was sold by the sheriff of Iredell County to the defendant Burgess. It is alleged further that the sale was illegal and that the only interest Burgess acquired, if any, was the interest of Drake. Drake has never been served with summons and is not a party to the action. The defendant demurred to the complaint on the ground of an improper joinder of parties and causes of action. The demurrer was overruled and Burgess excepted and appealed.
There is really only one defendant; and since the demurrer admits the allegations in the complaint it is obvious that there is no error in the judgment.
Affirmed.