Kitchen Equipment Co. of Virginia, Inc. v. International Erectors, Inc.

Higgins, J. In this action the plaintiff, Kitchen Equipment Company, sued the defendant, International Erectors, Inc., a Florida corporation, for breach of contract to pay for materials furnished and labor performed for the defendant in connection with a construction job in Martin County, North Carolina. By supplemental proceeding in attachment as authorized by G.S. 1-440.1 through G.S. 1-440.46, the plaintiff served on Peden a garnishment order requiring an answer as to any property held for, or money due to the defendant, to the end that the plaintiff might acquire a lien thereon for the satisfaction of any judgment recovered. Peden answered, stating it was due defendant not to exceed $1,045.44. The defendant answered plaintiff’s complaint. As a further defense and cross-action against Peden (in the case only as garnishee) the defendant attempted to assert a cause of action based on the breach of a contract between the defendant and Peden. Peden demurred thereto on the ground of misjoinder of parties and causes. From the judgment sustaining the demurrer, the defendant appealed. [129] Was the demurrer properly sustained? No other question arises on this appeal. The plaintiff’s cause of action involves a contract between the plaintiff and International. Peden was not a party to that contract. The cross-action involves a contract between International and Peden. The plaintiff was not a party to that contract. After Peden is brought into the case for the limited purpose of garnishment, the defendant cannot, by cross-action, have it held to answer a suit for damages allegedly due for breach of contract between the defendant and the garnishee. “Independent and irrelevant causes of action may not be litigated by cross-action, (citing authorities) . . . Ordinarily only those matters germane to the cause of action asserted in the complaint and in which all of the parties have a community of interests may be litigated in the same action.” Gibbs v. Light Co., 265 N.C. 459, 144 S.E. 2d 393. “Ordinarily, a defendant should not be permitted to bring in an additional party defendant whose presence is not necessary to a complete determination of the cause of action alleged by the plaintiff . . .” Clark v. Freight Carriers, 247 N.C. 705, 102 S.E. 2d 252; Hobbs v. Goodman, 240 N.C. 192, 81 S.E. 2d 413; Schnepp v. Richardson, 222 N.C. 228, 22 S.E. 2d 555. Peden has a right to require that International bring a separate suit (and give a bond for costs) to settle the rights of the two parties to their contract. The judgment sustaining the demurrer to the cross-action is Affirmed.