Joyner v. Champion Fiber Co.

Clark, C. J. The court had the right, and in fact it was its duty, tO‘ require all the parties to be brought in whose rights would be affected by the proceeding. Bev., 414. The trial judge found as a fact that said company was a proper and necessary party after the alleged compromise,, and his action was not reviewable. Aiken v. Mfg. Co., 141 N. C., 339. The judgment “may determine the ultimate rights of the parties on each side between themselves.” Bev., 563. An order making additional parties is not appealable. Bennett v. Shelton, 117 N. C., 103; Emory v. Parlcer, 111 N. C., 261; Lane v.. Richardson, 101 N. C., 181; and would have been premature, Etchison v. McGuire, 147 N. C., 389; Bernard v. Shemwell, 139 N. C., 447; Tillery v. Candler, 118 N. C., 889. In fact, there was no appeal or-exception to the order. *636 - Should an order making an additional party prove unnecessary the ■remedy is on the final judgment to allow such additional party to recover bis costs. Walker v. Miller, 139 N. C., 448; Jarrett v. Gibbs, 107 N. C., 304; Henderson v. Graham, 84 N. C., 496. The proceeding by plea since last continuance, filing a supplemental •complaint, became proper and, indeed, necessary to the final disposition •of the action. If the Fidelity & Casualty Company were, as alleged, 'responsible for any recovery against the fibre company, it may be that it was a proper party in the first instance, but it was not a necessary party till the compromise announced in open court. Gorrell v. Water Co., 124 N. C., 328, and cases cited thereto in the Anno. Ed. The trial judge correctly held that the amended complaint was in effect •a plea since the last continuance, and that the whole matter should properly be disposed of in this proceeding. The courts do not favor a multi•plicity of actions. The amended complaint does not set forth a different ■and a new cause of action, but seeks to subject the Fidelity & Casualty •Company on the alleged compromise by its duly accredited agent of its ultimate liability in this case, to which it has been made a party. It was not necessary to institute a new action, but the whole matter ¡should be properly and expeditiously settled in this proceeding by issuing a summons to make said company an additional party defendant, as ■was done. If it is found that it did consent, through its duly accredited •agent, to said compromise, judgment should be entered' accordingly. If it did not authorize such compromise its liability would depend ■upon the right of the plaintiff to recover, as beneficiary of the contract. "Whether such compromise was authorized or not is a matter to be adjudged by a jury upon answer filed, and the plaintiff would have been •entitled to judgment by default in not filing an answer, but for the fact that the Fidelity & Casualty Company filed a demurrer. Upon overruling the demurrer the said Fidelity & Casualty Company 'was entitled to appeal, unless the demurrer had been held frivolous. Rev., 506. The demurrer was proper overruled, but it was not frivolous, ■and the plaintiff was therefore not entitled to judgment pending the appeal from overruling the demurrer. . The judgment on both appeals is sustained. Each party will pay its •own costs of the appeal. Judgment on both appeals Affirmed;