Northwestern Bank v. Robertson

213 S.E.2d 363 (1975)

25 N.C. App. 424

The NORTHWESTERN BANK, Trustee of Inter Vivos Trust created by Reuben B. Robertson, Deceased, Petitioner, v. Logan T. ROBERTSON, Individually and as Executor of the Last Will and Testament of Reuben B. Robertson, Deceased, et al., Respondents.

No. 7528SC55.

Court of Appeals of North Carolina.

April 16, 1975.

*364 Morris, Golding, Blue & Phillips, by William C. Morris, and Bennett, Kelly & Cagle, P. A., by E. Glenn Kelly, Asheville, for prospective intervenor appellants.

Walter L. Currie, Asheville, for respondent appellees Logan T. Robertson, Jr., and Mary Norburn Robertson.

Roberts & Cogburn, by Max O. Cogburn, Asheville, for respondent appellees Scott A. Robertson and Ashley Nicholette Robertson.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis, P. A., by O. E. Starnes, Jr., Asheville, for respondent appellees Reuben B. Robertson, III, Clark Norburn, et al.

Fairley, Hamrick, Monteith & Cobb, by James D. Monteith, Charlotte, for respondent appellee Amerette Robertson.

ARNOLD, Judge.

The only question presented by this appeal is whether the successful bidder at an auction sale may intervene to contest a motion to enjoin conveyance of the property which was the subject of the auction sale. We answer that question "yes".

*365 As the purported purchasers of the property in question the appellants are entitled to intervene under G.S. § 1A-1, Rule 24, which provides in part:

"(a) Intervention of right.Upon timely application anyone shall be permitted to intervene in an action: . . . . . (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

The North Carolina Supreme Court has said that additional parties must have a legal interest in the subject matter of the litigation of such direct and immediate character that they will gain or lose by direct operation of the judgment. Griffin & Vose, Inc. v. Minerals Corp., 225 N.C. 434, 35 S.E.2d 247 (1945). See also Strickland v. Hughes, 273 N.C. 481, 160 S.E.2d 313 (1968); 1 McIntosh, N.C. Practice 2d, § 724 (Phillips Supp.1970). In the case at bar, appellants' bid was accepted by the auctioneer and they entered into a contract with the trustee. Having an interest in both the property and the transaction, they were certain to be affected by a proceeding to enjoin the trustee from executing the deed. Cf. Keathly v. Branch, 84 N.C. 202 (1881). See also Construction Co. v. Board of Education, 278 N.C. 633, 180 S.E.2d 818 (1971), where it was held that the successful bidder of a construction contract was a necessary party under Rule 19(a) in a proceeding by an unsuccessful bidder for a declaratory judgment that the contract award was invalid.

Appellees contend that both motions to intervene were not timely made and that Girard's motion was not accompanied by a pleading as required by Rule 24(c). Goldstein's motion, made before the hearing on respondents' motion for preliminary injunction, was not untimely under the circumstances. As for Girard, his interest is so closely related to that of Goldstein as to require that both become parties.

Without expressing any opinion as to the merits involved in this case the order of the trial court is vacated and the matter is remanded so that both appellants may be made parties to the proceeding.

Error and remanded.

BROCK, C. J. and PARKER, J., concur.