Presnell v. Trollinger Investment Co. , 20 N.C. App. 722 ( 1974 )

BRITT, Judge.

Plaintiffs assign as error the entry of summary judgment in favor of defendant as to the 3.02 acre tract for the reason that plaintffs were not given notice of the time and place of the hearing of the motion for summary judgment. We think the court erred in entering summary judgment but for reasons more substantial than that given by plaintiffs, therefore, we do not reach the question of notice.

Summary judgment is provided for by G.S. 1A-1, Rule 56. Subsection (c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” It appears that the granting of summary judgment in the instant case was based on the lack of necessary parties and that question appears to be covered by G.S. 1A-1, Rule 21, which provides: “Neither misjoinder of parties nor misjoinder of parties and claims is ground for dismissal of an action; but on such terms as are just parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action. Any claim against a party may be severed and proceeded with separately.”

The question of joinder also arises and G.S. 1A-1, Rule 20 (a) provides: “Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action.” G.S. 1A-1, Rule 19 (a) provides that “ . . . those who are united in interest must be joined as plaintiffs or defendants . ...” In this action there are three separate tracts of land; plaintiffs Presnell allegedly own two of the tracts in fee simple; they, together with the heirs of J. A. Sikes, allegedly own the third tract. As to the claims relating to the separate tracts of land, there was permissive joinder. With respect to parties, plaintiffs Presnell and the heirs of J. A. Sikes would be necessary parties as to the claim involving the 3.02 acre tract.

Under Rule 21 it would appear that the action of Judge Crissman in ordering a mistrial was not appropriate. An order severing the claims and proceeding with trial as to the two tracts owned by plaintiffs Presnell would have been appropriate. Under the prior procedure there was a misjoinder of parties and causes if any plaintiff or defendant, though interested in one or more tracts, was not interested in all tracts. See 1 McIntosh N. C. Practice and Procedure, § 647, at 346 (2nd ed. 1956), citing Burleson v. Burleson, 217 N.C. 336, 7 S.E. 2d 706 (1940), and also Insurance Co. v. Waters, 255 N.C. 553, 122 S.E. 2d 387 (1961). Where there was a misjoinder of both parties and causes of action, generally a severance was not permissible ; usually there would be a dismissal. For a full discussion of the consequences of a “dual misjoinder” under prior procedure, see Brandis, Permissive Joinder of Parties and Causes in North Carolina, 25 N.C. L. Rev. 1, 49-53 (1946).

It is quite clear from G.S. 1A-1, Rule 21, Comment, that Rule 21 was designed to cover the situation presented by the case at hand. As the Comment points out, Rule 21 is an exact counterpart to federal Rule 21 except for the addition of the phrase “nor misjoinder of parties and claims,” which was inserted because of the prior procedure upon “dual misjoinder.” Judge Crissman should have proceeded under Rule 21 to determine if parties could have been dropped or added on terms which would have been just to the parties. One of the purposes of Rule 21 is to insure that parties properly before the court may litigate their differences without being penalized by delay due to those who are not properly before the court.

G.S. 1A-1, Rule 17(a), provides: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest . ” Judge Seay’s order worked to dismiss the action for failure to prosecute in the name of the real party in interest. However, his order was not founded upon a determination that such failure had lasted beyond a reasonable time.

For the reasons stated, the judgment appealed from is vacated and this cause is remanded to the superior court for further proceedings consistent with this opinion.

Error and remanded.

Judges Parker and Vaughn concur.