ON PETITION FOR REHEARING. The petition discovers an error in the concurring opinion of Mr. Justice Cothran which requires correction, although the result is not changed thereby. The opinion states:
"The defendant Mrs. Adams was the maker of the notes sued upon, which were indorsed for accommodation by Mrs. Stanton; both were residents of Marlboro County; the payees, residents of Dillon County, indorsed the notes to the Dillon Bank."
As a matter of fact, the payees of the notes were Munn and Barrington, residents of Marlboro County, who indorsed the notes and transferred them to the Moores, partners composing the firm of Carolina Columbia Company, and they, residents of Dillon County, sold the notes to the Bank of Dillon, guaranteeing the payment. It does not appear that the Moores were directly connected by signature with the notes. This correction, if anything, more clearly demonstrates the fact that the complaint states two separate and distinct causes of action.
The burden of the appellant's criticism of the opinion is that it does not appear upon the face of the complaint that there is a misjoinder of causes of action; that for that reason the objection should have been taken by answer or motion and not by demurrer, as the Court holds.
In the first place, if there is in fact a misjoinder of causes of action, a point we are not to be understood as definitely deciding, the misjoinder appears upon the face of the complaint; for there is stated a cause of action upon the notes against all of the defendants and a separate cause of action against the guarantors upon their guaranty subsequently executed. *Page 214
In the second place, the only exception raising the question is the third, as follows:
"Because it appears from the complaint and the inspection of the notes that the effort is made to join as party defendants two different sets of parties who entered into separate and distinct contractual relations with the plaintiff, by two separate, independent contracts entered into at different times and relating to a different subject matter."
The appellant has no right to complain that the Court adopted the interpretation of the complaint insisted upon by her counsel, and has not sustained an inconsistent position now attempted to be maintained.
It is therefore ordered that the petition for a rehearing be dismissed and the order heretofore passed staying the remittiture be revoked.