We can see no error upon the point in respect to the misjoinder of parties plaintiffs urged in the argument, for the facts are not found, and the defendant must be taken to have waived by asking for time to except,c.; this was the view which his Honor took it, and in this we concur.
By the argument before us this question was suggested for consideration. Under the C. C. P., is a misjoinder, (that is making too many parties plaintiffs,) a fatal objection? We are inclined to the opinion that under the very liberal *Page 298 system of pleading introduced by C. C. P., the fact of unnecessary parties, either plaintiffs or defendants, is not a fatal objection.
As to the unnecessary parties made plaintiffs, it is their own concern, to be made liable for costs; as to the unnecessary parties made defendants, they are allowed to disclaim and have judgment for costs. By unnecessary parties, defendant is meant parties against whom the plaintiff is not by his own showing entitled to any decree, judgment or order. For illustration, take our case, (as we conjecture the fact to be,) an action for the recovery of land by Tilmon Green v. George Green. The defendant relies upon an equitable defense, to-wit: that he is entitled to the land on paying certain amounts paid by one Long, under whom the plaintiff derives title with notice of the defendant's equity, which is admitted and a reference ordered by the Court to fix the amount remaining unsatisfied; pending the proceeding Tilmon Green dies, and B. A. Green and G. B. Green are made party plaintiffs and carry on the action. Now what difference can it make, that instead of B. A. Green and J. B. Green being entitled to the land as devisees, taking the land as tenants in common, the former is tenant for life and the latter is entitled to the remainder in fee? There is no harm done by joining the remainderman as plaintiff, like the case where the seller and the purchaser of a note, there being no endorsement, are both plaintiffs — the joinder is unnecessary, but what harm can it do? So in regard to unnecessary parties defendant, for under the C. C. P., the complaint and answer set out all of the facts, and under a special plea, "former judgment for the same cause of action between the same parties," all of the facts appear by the pleadings, and the joinder of unnecessary parties will be surplusage.
C. C. P., sec. 95: "A defect of parties plaintiff or defendant is ground of demurrer," but too many parties *Page 299 is surplusage only, cured as above indicated by judgment for costs or disclaimer. A misjoinder of one who is a necessary party is fatal, for he will not be bound by the judgment, this effects the merits; a misjoinder of one who is not a necessary party is surplusage.
Upon the point as to the right of the defendant to put an end to the order of reference, we concur with his Honor. On the facts set out in the replication it only remained to ascertain by an account how the balance stood, and the reference was ordered by the Court to settle the details, and was in no sense a reference of the case by consent of parties. SeeMaxwell v. Maxwell, 67 N.C. 383.
Affirmed.
After this case was argued and decided and an opinion written, Mr. Bailey obtained leave to file a brief as attorney for defendant.
This Court is willing at all times before the opinion is filed, to avail itself of the aid of the members of the bar in "the search after truth," by briefs filed presenting a new view based on the facts of the case, or a reference to additional authorities, directly in point.
Upon a re-perusal of the record, we find that the ingenious argument of Mr. Bailey has no foundation of fact to rest on. He says, by the supplemental answer, it is alleged that "the plaintiffs are only remainder men, devisees in remainder." The record shows the fact to be that the supplemental answer says that there is a misjoinder of parties plaintiff, "that John B. Green who has been made a party plaintiff, with Beady B. Green, has only a claim in remainder, and is not entitled to the present possession according to the rights set up by the plaintiffs;" here is an admission that Beady B. Green is entitled to a present estate according to to the rights set up by the plaintiffs, and the objection is that the remainder man, John B. Green, ought not to have been made a party which has been already disposed of. *Page 300
We take this notice of the brief of Mr. Bailey out of respect for the learned counsel and with the hope that it will be an admonition to counsel, not to allow their professional zeal to result in overlooking the facts of the case in order to present "a nice point of law."
PER CURIAM. Judgment affirmed.