Shemwell Ex Rel. Shemwell v. Lethco

Per Curiam. Pending this appeal the defendant Lethco died. The Commercial National Bank of Charlotte duly qualified as executor of his will, and has been made a party defendant in the action and permitted to .and has adopted the pleadings heretofore had in this action. We do not think that any of the assignments of error made by defendant Lethco can be sustained. The Superior Court has large discretion in reference to some of defendants’ assignments of error and from the view *348 we take of this matter, if error not prejudicial. "Without going into an analysis of the cross-complaint, bill or action, we think the court below correct in sustaining the demurrer filed by the new parties brought into the original action by the cross-complaint, bill or action of defendant Lethco, when he filed answer to plaintiff’s complaint. In Bank v. Angelo, 193 N. C., at p. 518, citing numerous authorities, it is said: “It is well settled that where there is a misjoinder, both of parties and causes of action, and a demurrer is interposed upon this ground, the demurrer should be sustained and the action dismissed.” Land Co. v. Beatty, 69 N. C., 329; Rose v. Warehouse Co., 182 N. C., 107; Pender County v. King, 197 N. C., 50. “A misjoinder of parties is not a material defect, and the action will proceed as to the parties properly joined; a misjoinder of causes is a defect, which may cause a separation into different actions; and a mis-joinder of parties and of causes is a more serious defect, in that it may result in a dismissal of the action.” McIntosh, N. C. Prac. & Proc. in Civil Cases, sec. 442, p. 453. See C. S., 456, 460, 506, 507, 508, 511, 516, 519, 521, 522; Merrill v. Merrill, 92 N. C., 657; Killian v. Hanna, 193 N. C., 17; Thompson v. Buchanan, 195 N. C., 155. Under our Code of Civil Procedure, we have universally held that in construing pleadings for the purpose of determining its effect, its allegations are liberally construed with a view to substantial justice between the parties. This does not mean that injustice should be done to others by improper joinder of parties and causes of action. We should maintain a liberal but orderly system of practice and procedure, a jungle system would work injustice and sooner or later our practice and procedure would be a tangled web and maze. C. S., 535. Clendenin v. Turner, 96 N. C., 421. We have read the record carefully in reference to the contentions of the parties and the briefs of the respective parties charging each other that the action and cross-action are inequitable. We pass only on the demurrer, as we are dealing simply with allegations. The parties contend in their briefs that there is an attempt to repudiate on one side and unconscionable claim on the other; the “pot calling the kettle black,” but these are contentions of fact to be determined in the court below and not for us. The judgment of the court below is Affirmed.