Byrd v. . Byrd

Furches, J.: This is an action for the recovery of money alleged to be due by account. The defendant, C. Ii.Byrd, is the administrator of Charles Byrd, and the appellants are two of the heirs and next of kin to said Charles. At the trial term they filed an affidavit in which they alleged that the claim sued on is barred by the statute of limitations; that defendant had not pleaded this defence and alleged fraud and collusion between plaintiff and defendant and asked to be allowed to make themselves parties defendant and that they be allowed to file an answer and defend the action. To this affidavit and motion to be made parties the defendant, without admitting affiants’ right to be made *525 parties, agreed they might be so made, as they had alleged fraud and collusion with plaintiff and that they might put in any defence they pleased except the statute of limitations; that this he wonld not agree they should do, as he knew the claim sued on was a just debt and should be paid. Upon this statement of the defendant administrator, the court stated to affiants they might make themselves defendants and make any defence they had to the claim except the statute of limitations; the court would not allow them to plead the statute of limitations and defend on that ground. Affiants declined to make themselves parties upon the terms proposed by the administrator and adopted and proposed by the court as above set forth, and appealed to this Court. We can see no ground upon which they can maintain this appeal. Though they were heirs-at-law and next of kin to the intestate Charles, they were strangers to this action and had no more right to make themselves parties than they would have had if the intestate Charles had been living and had been sued for this claim, instead of his personal representative. Code, Section 1507; Spier v. James, 94 N. C., 417. They had no interest in the subject matter of this action and therefore no right to demand that they should be made parties. Colgrove v. Koonce, 76 N. C., 363; Wade v. Saunders, 70 N. C., 270. To have entitled them to this right, they must not only have been interested in the subject matter but jointly interested in the subject of litigation, so as to make them necessary parties to a final determination. Jones v. Asheville, 116 N. C., 817; Lytle v. Burgin, 82 N. C., 301. In actions of ejectment against a tenant the landlord may be allowed to make himself a party and defend the possession of his tenant, as he is the principal party interested. Bryan v. Kinlaw, 90 N.. *526 C., 637, and many other cases. But these cases do not conflict with the reason or the rule announced in Colgrove v. Koonce, supra, and that line of cases. But, if afliants had made themselves parties, as the time for pleading allowed by law had passed, they had no right to plead without the permission of the court. And the ruling as to this was a matter-of discretion and this Court has no rigíit to review the same. Turner v. Shuffler, 108 M. C., 642. But, as affiants had no right to make themselves parties, they had no right to appeal. And their appeal must be dismissed. Dismissed.