Mangum v. Southern Railway Co.

Clarkson, J. N. C. Code, 1935 (Michie), sec. 618, in part, is as follows: “In all cases in the courts of this State wherein judgment has been or may hereafter be rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tort-feasors, and the same has not been paid by all the judgment debtors by each paying his proportionate part thereof, one of the judgment debtors shall pay the judgment creditor, either before or after execution has been issued, the amount due on said judgment, and shall, at the time of paying the same, demand that said judgment be transferred to a trustee for his benefit, it shall be the duty of the judgment creditor or his attorney to transfer without recourse such judgment to a trustee for the benefit of the judgment debtor paying the same; and a transfer of such judgment as herein contemplated shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his proportionate part thereof to the extent of his liability thereunder in law and in equity, and in the event the judgment was obtained in the action arising out of a joint tort, and only one, or not all of the joint tort-feasors, were made parties defendant, those tort-feasors made parlies defendant, and against whom judgment was obtained, may, in an action *137 therefor, enforce contribution from the other joint tort-feasorsj or at any time before judgment is obtained, the joint tort-feasors made parties defendant may, upon motion, have the other joint tort-feasors made parties defendant.” (Italics ours.) See Gaffney v. Casualty Co., 209 N. C., 515. In accordance with, this section, the defendants Southern Eailway Company and North Carolina Eailroad Company (original parties) prayed that the receivers of Seaboard Air Line Eailway Company, residents of Virginia, be made parties defendant, and allege that they are not guilty of negligence; but further allege, in substance, that if they are guilty of negligence they are liable only as joint tort-feasors with the receivers. We think that this procedure is permissible under the section, supra. The plaintiff, from her allegations in the complaint against the original defendants, cannot be affected by this procedure of the original defendants under the statute bringing in the receivers as joint tort-feasors. The original defendants were not entitled to removal. The question as to the nature of the controversy, and whether there is separable controversy, is determined by the complaint. The plaintiff is entitled to have her cause of action considered as stated in the complaint. In Powers v. Chesapeake & Ohio Railway, 169 U. S., 92 (97), speaking to the subject, it is said: “A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.” Trust Co. v. R. R., 209 N. C., 304; Howell v. R. R., 209 N. C., 589. The judgment of the court below is Affirmed.