Coulter v. . Wilson

Hoke, J., after stating tbe case: Tbe Court is unable to perceive tbat tbe plaintiffs, either in their allegations or evidence, have established any cause of action against defendants R. S. Fraser et al., ap-pellees, or shown any right to have them retained further in the ease. Not only is it alleged in the original and amended complaint that these appellees are the holders of the true title, and that this fact has been established as between plaintiffs and appellees by judgment of a competent court, but the further proceeding has disclosed that the original defendant, R. L. Wilson, grantor of plaintiffs, had broken his covenants of seizin and warranty in reference to the title, and plaintiffs have recovered judgment against such defendant for the damages incident to the breach. Holding, therefore, by title paramount to both plaintiffs and the original defendant, R. L. Wilson, these appellees were improperly made parties in the first instance, Clendenin v. Turner, 96 N. C., 422; Robbins v. Harris, 96 N. C., 557; Ely v. Early, 94 N. C., 1; Asheville Div. v. Aston, 92 N. C., 588; Colgrove v. Koonce, 76 N. C., 363; and the action was properly dismissed as to them whenever it was made to appear that plaintiff had no claim against them and their presence was not necessary to a complete and proper determination of the controversy between plaintiffs and the original defendant, R. L. Wilson. It is suggested that the question of joining these defendants as parties should have been raised by formal written demurrer, and that the objection is waived by answer filed. This may have been true if the objection only presented a case of misjoinder of parties or causes of action, but is not maintainable when the facts alleged in the pleadings or disclosed in evidence show that plaintiff has no cause of action. Pomeroy’s Code Remedies (4 Ed.), p. 278; Revisal, see. 478. In the last citation it is provided in reference to objections of this character: “If no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.” And in Pomeroy it is said: “Finally, whatever be the completeness or defect of the allegations made by plaintiff and of the issues raised in the answers of defendants, if on the trial the evidence fails to establish a cause of action against some portion of the defendants, and it thus appears that they have been wrongfully proceeded against in the action, the plaintiff will be nonsuited or his ease dismissed as to them *540 and his recovery limited to the others against whom a canse of action has been made out.” . * It is urged further that the plaintiffs have the right to retain these parties as necessary to a decision of the question of title. But to what purpose or on what principle? Doubtless, under our present procedure, codefendants may be allowed or required to litigate matters between themselves; but this must be determined in reference to the demand made by plaintiffs, and is only permitted when the decision of such issues is essential or desirable for a complete determination of the controversy in the principal case. Oodefendants may not be required or allowed to raise and debate issues between themselves which are entirely irrelevant to the demand as made by plaintiff and are not required in any way to a full and correct .determination of his cause of action. “A cross-action by a defendant against a eodefendant or third party must be in reference to the claim made by plaintiff, and based upon an adjustment of that claim. Independent and irrelevant causes of action cannot be litigated by cross-actions.” 31 Cyc., 224, citing, among other cases, Joyce v. Growney, 154 Mo., 253. There was no error in dismissing the action against the appellees, and the judgment to that effect is Affirmed.