Burton v. City of Reidsville

83 S.E.2d 651 (1954)

240 N.C. 577

John H. BURTON and Earl Burton, representing the citizens and taxpayers of the City of Reidsville, and such other taxpayers as shall ask to be made parties to this action, Plaintiffs, J. W. Amos, Mrs. C. E. Warner and Claude S. Burton, Additional Parties Plaintiff, and parties who have requested to be made additional parties plaintiff: Mr. and Mrs. J. W. Moricle; Mr. and Mrs. John Busick; Mr. and Mrs. James Wilson; Mrs. Bertha Collins; Mr. and Mrs. Herbert Ford; Mr. and Mrs. Walter Chaney; Mr. and Mrs. W. L. Coleman; Mr. and Mrs. Lee Somers; Mr. and Mrs. L. G. Stanley; Mr. and Mrs. Lonnie Brown; Mr. and Mrs. Lewis Golden; Mr. and Mrs. Numa Robertson; Mr. and Mrs. H. P. Hall; Miss Ada Bowes; Mr. and Mrs. E. V. Boswell; Mr. and Mrs. W. D. Stanley; Mr. Robert L. Stanley; Mr. T. L. Gardner; Mr. P. M. Ware; Mr. and Mrs. Henry Doss; Mrs. Robert Craddock; Mr. and Mrs. Clarence Moore; Mrs. Annie Allington; Mr. and Mrs. Herman Hazlip; Mr. Melvin Moricle; Mr. and Mrs. R. G. Faircloth and Mrs. A. Z. Hooper, herein designated as Adverse Parties Plaintiff, v. The CITY OF REIDSVILLE; George Hunt, James L. Thompson, Sr., W. B. Pipkin, Clyde Cobb and William C. Springs in their capacity as Members of the City Council of the City of Reidsville and also In their capacity as individuals.

No. 22.

Supreme Court of North Carolina.

September 22, 1954.

*653 Julius J. Gwyn, Reidsville, for plaintiffs, appellants.

Jule McMichael and Claude S. Scurry, Reidsville, for defendants, appellees.

Sharp & Robinson, Reidsville, for adverse parties plaintiff, appellees.

JOHNSON, Justice.

In order to justify joinder of parties plaintiff the interests of the plaintiffs must be consistent. True, the unity or identity of interest required at common law is not necessary under the Code, G.S. §§ 1-68, 1-70; Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. 750, but two or more plaintiffs representing opposing interests with reference to the main purpose of the action may not be joined. Osborne v. Canton, 219 N.C. 139, 13 S.E.2d 265; McIntosh, N.C. Practice and Procedure, *654 Sec. 228, p. 212; 39 Am.Jur., Parties, Sec. 29, p. 892; Hallett v. Moore, 282 Mass. 380, 185 N.E. 474, 91 A.L.R. 572. Moreover, an intervener as a party plaintiff in a taxpayer's action ordinarily must come into the case as it exists and conform to the pleadings as he finds them. See 39 Am.Jur., Parties Sec. 79.

The plaintiff J. W. Moricle and those similarly situated have come into the case, and by their pleading have expressly denied all material allegations of the complaint and attempted to assert claims wholly antagonistic to those alleged by the original plaintiffs. Manifestly, the court below erred in permitting these adverse parties to remain in the action as plaintiffs. The question whether they may be joined as defendants not having been ruled on below is not presented for review. This Court will not decide questions on appeal which have not been adjudicated in the court below. Bank of Wadesboro v. Caudle, 239 N.C. 270, 79 S.E.2d 723; Perry v. Doub, 238 N.C. 233, 77 S.E.2d 711.

Next we come to the question whether the court below erred in allowing the defendants' motion for judgment on the pleadings. These principles of law come into focus:

A motion for judgment on the pleadings is in effect a demurrer to the challenged pleading and admits the truth of all well-pleaded facts in the pleading and the untruth of the movant's own allegations insofar as they are controverted by the pleading of the adversary. McGee v. Ledford, 238 N.C. 269, 77 S.E.2d 638; Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384. See also Dobias v. White, 239 N.C. 409, 80 S.E.2d 23. Moreover, if good in any respect or to any extent, a plea will not be overthrown by motion for judgment on the pleadings. Erickson v. Starling, supra. See also Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Perry v. Doub, supra.

The complaint, when liberally construed in favor of the pleader, as is the rule on demurrer or motion for judgment on the pleadings, is sufficient to allege abuse of discretion on the part of the governing board of the City of Reidsville in ordering the destruction of the apartment Buildings. This suffices to overthrow the motion for judgment on the pleadings and entitles the plaintiffs to be heard on the questions of fact raised by the pleadings. See in re Housing Authority, etc., 235 N.C. 463, 70 S.E.2d 500. The judgment was erroneously entered and will be set aside. It is so ordered.

Error.