Opinion
(Filed 20 April, 1932.)
Pleadings E a — Where action is dismissed for misjoinder of parties and causes the court has no jurisdiction to allow amendment.
Where an action has been dismissed for misjoinder of parties and causes the action is not pending and the court has no power to allow a motion to amend the pleadings under the provisions of C. S., 515.
APPEAL by plaintiff from Harris, J., at February Term, 1932, of WAYNE. Affirmed.
Teague Dees, J. Faison Thomson and Kenneth C. Royall for appellant.
Langston, Allen Taylor, Dickinson Freeman and R. D. Johnson for appellees.
The plaintiff filed his complaint in an action entitled as above, to which the defendants demurred. For misjoinder of parties and causes of action Judge Cowper sustained the demurrer and dismissed the action. On appeal the judgment was affirmed, this Court observing that the act of 1931 amending C. S., 456 (Pub. Laws 1931, chap. 334, sec. 2), applies only when the plaintiff is in doubt as to the persons from whom he is entitled to redress on his cause of action. Grady v. Warren, 201 N.C. 693.
When the demurrer was sustained for misjoinder of parties and causes the action was dismissed. Bank v. Angelo, 193 N.C. 576; Harrison v. Transit Co., 192 N.C. 545; Robinson v. Williams, 189 N.C. 256.
Within ten days after the receipt of the certificate of the Supreme Court the plaintiff moved on three days' notice for leave to amend the complaint by striking out all allegations relating to the Citizens Bank and by striking out the Citizens Bank as a party defendant. Judge Harris properly denied the motion as a matter of law.
The right to amend the complaint upon three days notice under C. S., 515, when a demurrer is sustained, has no application to cases in which the action has been dismissed for misjoinder of parties and causes. In such event the action is not pending and the court is without jurisdiction to allow the amendment. Judgment
Affirmed.