Dunn v. . Aid Society , 151 N.C. 133 ( 1909 )

The facts are sufficiently stated in the opinion. This is an action against the defendant, a fraternal insurance company, for damages, alleging that on plaintiff's application he was elected a member by ballot, but that subsequently, misled by false statements, to his prejudice, made by one of the directors, the defendant association rescinded its action, refused to issue him a certificate of membership and returned him the initiation fee, greatly to his humiliation; wherefore he asks damages for breach of contract.

Counsel entered a special appearance and moved to dismiss the action because the defendant was styled, in the summons which (134) was served, "The Knights of Gideon Mutual Aid Society," whereas the true name is "The Supreme Lodge, Knights of Gideon Mutual Society." The service was upon the president of the latter corporation.

His Honor allowed the motion and dismissed the action on that account, and also because there was a misjoinder of causes of action and because no cause of action was stated.

The misnomer was not ground for dismissal, but for plea in abatement, when, the correct name being given, the summons and pleadings would be amended to confirm. 14 Cyc., 438; 14 A. E. Pl. Pr., 295; 7 A. E., 688. The defect here would not even vitiate a conveyance. Asheville Div. v.Aston, 92 N.C. 584, and cases cited.

Nor was there a misjoinder of causes of action. Had there been, the remedy was not to dismiss, but to divide the action (Revisal, sec. 476), because the party is already in court, having received notice by the summons and complaint. The division is merely to prevent, in proper cases, confusion and complexity in the trial. R. R. v. Hardware Co., 135 N.C. 73;Weeks v. McPhail, 128 N.C. 134; Gattis v. Kilgo, 125 N.C. 133.

But the action was properly dismissed because no cause of action was stated. The conducted of the director, even if it were ground of action against him, was in the line of his duty and not ground of action against the company. Nor did the action of the company in rescinding its resolution before a certificate of membership was issued entitle the plaintiff to sue for breach of contract.

Affirmed.

Cited: Drainage District v. Comrs., 174 N.C. 739.