Summary
In Cromartie v. Parker, 121 N.C. 204, also relied upon by the defendants, the complaint set up separate causes of action against several parties, among whom there was no community of interests.
Summary of this case from Ayers v. BaileyOpinion
(September Term, 1897.)
Quo Warranto — Practice — Misjoinder of Causes of Action — Misjoinder of Parties — Community of Interests — Division of Action.
1. A complaint setting up separate causes of action against several parties, among whom there is no community of interests, is demurrable, on the ground of misjoinder of causes of action and of parties.
2. The complaint in an action in the nature of quo warranto against several members of a board of county commissioners, alleging that the defendants held their offices by different tenures, from different sources, and had forfeited them by different acts, is demurrable on the ground of a misjoinder of distinct causes of action; the action being directed not at the power or authority of the board to act as such, but at the separate right of each individual defendant to remain a member of the board.
3. Where there is not only a misjoinder of distinct causes of action, but also a misjoinder of parties having no community of interests, the action cannot be divided, under section 272 of the Code, which permits division only when the causes alone are distinct.
ACTION in the nature of quo warranto, heard before McIver, J., (199) at Fall Term, 1897, of BLADEN, on complaint and demurrer.
The demurrer was sustained, and plaintiff appealed. (202)
R. S. White and N. A. Sinclair for plaintiff.
C. C. Lyon for defendant.
This is an action in the nature of quo warranto (203) against the defendants to oust them from their offices as County Commissioners of the County of Bladen. The complaint alleged that the defendants, Thompson and Anders, had been duly elected as such commissioners, but had forfeited said offices by their acceptance of the office of members of the board of education; that the defendants, Parker and Lyon, were appointed additional commissioners under the provisions of section 5, chapter 135, Laws 1895, and lost all right to said offices by the repeal of said section by chapter 366, Laws 1897; and that the defendant Lyon, in addition to having lost said office of commissioner by the repeal of said section, forfeited it by accepting the office of member of the board of education. It is alleged that the defendants not only accepted membership on the latter board, but elected themselves thereto by their votes as county commissioners.
It will thus be seen that the defendants held the offices from which they are sought to be ousted by different tenures and from different sources; were elected and appointed thereto at different times, and forfeited their offices, if they are forfeited, by different acts.
The acceptance of another office by one commissioner could not affect the tenure of any other commissioner. The defendants demurred, among other grounds, for "That there is an improper joinder of actions, as each of the defendants holds an office as a member of the board of commissioners, independent and separate from the office of other members of said board, and an action cannot be brought against several persons to try the right to different offices." The demurrer was properly sustained. Section 267 of the Code specifies what causes of action may be joined, and expressly states that "The causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action." Land Co. (204) v. Beatty, 69 N.C. 329; Logan v. Wallis, 76 N.C. 416; Street v. Tuck, 84 N.C. 605; Doughty v. R. R., 78 N.C. 22; Hodges v. R. R., 105 N.C. 170.
The action at bar comes within none of the enabling clauses of that section. There is no community of interests between the defendants. The acceptance of another office by one would in no way affect the right of any of the others, as no two are claiming the same office. The action does not go to the power or authority of the board to act in any way as a board, but to the separate right of each individual defendant to remain a member of that board. The right of the defendant Parker cannot depend upon the acceptance of additional offices by the three other defendants, as he has accepted no such office, while the fact that he obtained his appointment from the judge had nothing whatever to do with the tenure of those elected by the people.
As in this case there is not only a misjoinder of distinct causes of action, but also a misjoinder of parties having no community of interests, the action cannot be divided under section 272 of the Code, which permits division only where the causes alone are distinct. Mitchell v. Mitchell, 96 N.C. 14. As this action cannot be maintained as now constituted, and cannot be divided, we do not see how the plaintiff could be benefited by leave to amend, even if granted. The judgment below is
Affirmed.
Cited: Barnhill v. Thompson, 122 N.C. 494; Morton v. Tel. Co., 130 N.C. 303; Pritchard v. Mitchell, 139 N.C. 56; Thigpen v. Cotton Mills, 151 N.C. 98; Ayers v. Bailey, 162 N.C. 212; Cooper v. Express Co., 165 N.C. 539; Campbell v. Power Co., 166 N.C. 489.
(205)