Kitchen Equipment Co. of Virginia, Inc. v. International Erectors, Inc. , 268 N.C. 127 ( 1966 )

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. 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.