Opinion
(December Term, 1844.)
1. All of the plaintiffs or all of the defendants, must join in an appeal from an inferior court, or the appeal will be dismissed.
2. Where there are several plaintiffs in an action of tort, and after the pleadings are made up one of the plaintiffs comes into court and enters a retraxit, the proper course for the court is to permit his name to be stricken from the writ and declaration, and suffer the other plaintiffs to proceed with the suit. In such a case the court should not suffer the defendant to amend his pleadings by pleading in abatement the want of the proper plaintiffs.
3. If one of the plaintiffs release to the defendant, the defendant may plead this release in bar since the last continuance, and in England the other plaintiffs may reply per fraudem, and have this issue tried at law. But in our State the practice has been to leave the parties to their remedy in equity.
APPEAL from RICHMOND, Fall Term, 1844; Bailey, J.
Strange for plaintiffs.
No counsel for defendants.
Trespass quare clausum fregit, brought by nine persons as plaintiffs, styling themselves "Elders and Trustees of the Church of Center Congregation." The suit was returnable to Fall Term, 1843. At Fall Term, 1844, Daniel McKinnon, one of the plaintiffs, came (229) into court in proper person and prayed leave to enter a retraxit, and moved to dismiss the suit, as having been instituted without his knowledge and against his will, and thereupon directed the said suit to be dismissed. Daniel Wilkinson, and all the plaintiffs except McKinnon, objected to the motion of McKinnon, and opposed the dismission of the suit, claiming title to the locus in quo by proving that it was embraced in the boundaries of the said deed; but the court permitted the said Daniel McKinnon to enter a retraxit, and ordered the suit to be dismissed. The other plaintiffs prayed an appeal from this order to the Supreme Court, which prayer for an appeal was opposed by the said McKinnon, he dissenting therefrom and protesting against it. The court, yielding to the earnest entreaty of the other defendants, permitted the appeal to be taken; Gilchrist and McKay, the defendants in the suit, opposing the said appeal, and insisting that there was nothing to appeal from; that the suit to which they were defendants could not be carried up by appeal in the way proposed.
This Court has heretofore decided that all the plaintiffs or defendants in a suit must assent before an appeal can be taken from the order, judgment, or decree of an inferior court. If one or more of the parties plaintiffs or defendants dissent an appeal cannot be taken by the others. The reason for this rule of law will be found in Gilliam v. Hicks, 15 N.C. 217. We have no jurisdiction over this case, and, therefore, we must dismiss the appeal out of this Court.
But we will say that we think the judge erred in extending the effect of McKinnon's retraxit to all the plaintiffs against their will. It does not appear that McKinnon ever acted as a trustee to the said (230) church; he might, therefore, have released to the defendants, which release they might have pleaded since the last continuance in bar of the action. Emery v. Mucklaw, 10 Bingh., 23. In England to such a plea the plaintiff might reply per fraudem, and try it at law (ibid., 23), but in this State the practice always has been to leave the parties to a court of equity, to decide whether such a release was fraudulently obtained. But the more proper course on this motion, it seems to us, would have been to permit McKinnon to strike his name out of the writ and declaration; and then, if the other plaintiffs could have gone on in the action without him, they should have been permitted to do so. In this case it is probable that the other plaintiffs might have proceeded in the cause without McKinnon, as it is not to be presumed that the court would have permitted them to have pleaded in abatement that McKinnon, one of the tenants in common of the land, was not made a party plaintiff, as by his retraxit he was forever barred from bringing another action for the same cause, 2 Arch. Prac., 250; and it being an action in tort, the defendants could not have taken advantage of the nonjoinder of McKinnon on the general issue. However that may be, we must dismiss the appeal from this Court for the reason first mentioned.
PER CURIAM. Appeal dismissed.
Cited: Jackson v. Hampton, 32 N.C. 604.
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