{
  "id": 8555282,
  "name": "STANTON J. PRESNELL and wife, HELEN A. PRESNELL and MAYBERRY PAYNE, Executor of the Estate of Ethel L. Sikes v. TROLLINGER INVESTMENT COMPANY",
  "name_abbreviation": "Presnell v. Trollinger Investment Co.",
  "decision_date": "1974-02-20",
  "docket_number": "No. 7419SC18",
  "first_page": "722",
  "last_page": "726",
  "citations": [
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "reporter": "S.E.2d",
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      "cite": "255 N.C. 553",
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      "year": 1940,
      "opinion_index": 0
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    {
      "cite": "217 N.C. 336",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T15:39:00.958655+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Vaughn concur."
    ],
    "parties": [
      "STANTON J. PRESNELL and wife, HELEN A. PRESNELL and MAYBERRY PAYNE, Executor of the Estate of Ethel L. Sikes v. TROLLINGER INVESTMENT COMPANY"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nPlaintiffs assign as error the entry of summary judgment in favor of defendant as to the 3.02 acre tract for the reason that plaintffs were not given notice of the time and place of the hearing of the motion for summary judgment. We think the court erred in entering summary judgment but for reasons more substantial than that given by plaintiffs, therefore, we do not reach the question of notice.\nSummary judgment is provided for by G.S. 1A-1, Rule 56. Subsection (c) provides that summary judgment \u201cshall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d It appears that the granting of summary judgment in the instant case was based on the lack of necessary parties and that question appears to be covered by G.S. 1A-1, Rule 21, which provides: \u201cNeither misjoinder of parties nor misjoinder of parties and claims is ground for dismissal of an action; but on such terms as are just parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action. Any claim against a party may be severed and proceeded with separately.\u201d\nThe question of joinder also arises and G.S. 1A-1, Rule 20 (a) provides: \u201cPermissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all parties will arise in the action.\u201d G.S. 1A-1, Rule 19 (a) provides that \u201c . . . those who are united in interest must be joined as plaintiffs or defendants . ...\u201d In this action there are three separate tracts of land; plaintiffs Presnell allegedly own two of the tracts in fee simple; they, together with the heirs of J. A. Sikes, allegedly own the third tract. As to the claims relating to the separate tracts of land, there was permissive joinder. With respect to parties, plaintiffs Presnell and the heirs of J. A. Sikes would be necessary parties as to the claim involving the 3.02 acre tract.\nUnder Rule 21 it would appear that the action of Judge Crissman in ordering a mistrial was not appropriate. An order severing the claims and proceeding with trial as to the two tracts owned by plaintiffs Presnell would have been appropriate. Under the prior procedure there was a misjoinder of parties and causes if any plaintiff or defendant, though interested in one or more tracts, was not interested in all tracts. See 1 McIntosh N. C. Practice and Procedure, \u00a7 647, at 346 (2nd ed. 1956), citing Burleson v. Burleson, 217 N.C. 336, 7 S.E. 2d 706 (1940), and also Insurance Co. v. Waters, 255 N.C. 553, 122 S.E. 2d 387 (1961). Where there was a misjoinder of both parties and causes of action, generally a severance was not permissible ; usually there would be a dismissal. For a full discussion of the consequences of a \u201cdual misjoinder\u201d under prior procedure, see Brandis, Permissive Joinder of Parties and Causes in North Carolina, 25 N.C. L. Rev. 1, 49-53 (1946).\nIt is quite clear from G.S. 1A-1, Rule 21, Comment, that Rule 21 was designed to cover the situation presented by the case at hand. As the Comment points out, Rule 21 is an exact counterpart to federal Rule 21 except for the addition of the phrase \u201cnor misjoinder of parties and claims,\u201d which was inserted because of the prior procedure upon \u201cdual misjoinder.\u201d Judge Crissman should have proceeded under Rule 21 to determine if parties could have been dropped or added on terms which would have been just to the parties. One of the purposes of Rule 21 is to insure that parties properly before the court may litigate their differences without being penalized by delay due to those who are not properly before the court.\nG.S. 1A-1, Rule 17(a), provides: \u201cNo action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest . \u201d Judge Seay\u2019s order worked to dismiss the action for failure to prosecute in the name of the real party in interest. However, his order was not founded upon a determination that such failure had lasted beyond a reasonable time.\nFor the reasons stated, the judgment appealed from is vacated and this cause is remanded to the superior court for further proceedings consistent with this opinion.\nError and remanded.\nJudges Parker and Vaughn concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Ottway Burton for plaintiff appellants.",
      "Moser and Moser, P.A., by Tifiad T. Moser, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "STANTON J. PRESNELL and wife, HELEN A. PRESNELL and MAYBERRY PAYNE, Executor of the Estate of Ethel L. Sikes v. TROLLINGER INVESTMENT COMPANY\nNo. 7419SC18\n(Filed 20 February 1974)\n1. Parties \u00a7 1; Rules of Civil Procedure \u00a7\u00a7 21, 56\u2014 absence of necessary parties \u2014 summary judgment\nThe trial court erred in granting summary judgment for defendant based on the absence of necessary parties plaintiff. G.S. 1A-1, Rule 21.\n2. Parties \u00a7 1; Rules of Civil Procedure \u00a7 21\u2014 absence of necessary parties \u2014 mistrial\nIn an action involving location of the boundaries of three separate tracts of land, the trial court erred in declaring a mistrial when the evidence disclosed that plaintiffs named as owners of a one-half undivided interest in one of the tracts were not actually the owners and that the true owners of such interest were not parties to the action; rather, the court should have proceeded under G.S. 1A-1, Rule 21, to determine if parties could have been dropped or added on terms which would have been just to the parties and should have at least proceeded with trial as to the two other tracts.\n3. Parties \u00a7 2; Rules of Civil Procedure \u00a7 17\u2014 absence of real party in interest \u2014 dismissal of action\nThe trial court erred in dismissing an action for failure to prosecute in the name of the real party in interest where the court\u2019s order was not founded upon a determination that such failure had lasted beyond a reasonable time. G.S. 1A-1, Rule 17(a).\nAppeal by plaintiffs from Seay, Judge, 28 May 1973 Session of Superior Court held in Randolph County.\nIn this civil action, instituted on 13 April 1972, plaintiffs seek injunctive relief and recovery for injury to their real estate. They allege in pertinent part: Plaintiffs Presnell are are the owners of two tracts of land, one tract containing 1.4 acres and the other containing 11 acres. Plaintiffs Presnell and the estate of Ethel L. Sikes are the owners of a third tract of land, containing 3.02 acres, the Presnells owning a one-half interest and the Sikes estate owning a one-half interest in said tract. The executor of the E. L. Sikes estate is a party plaintiff. Defendant is engaged in the business of developing real estate. On or about 10 April 1972, defendant\u2019s agents went upon plaintiffs\u2019 lands, cut and removed trees, and otherwise trespassed upon plaintiffs\u2019 lands; plaintiffs are informed and believe defendant proposes to do further irreparable damage to their property. Plaintiffs asked for a temporary and permanent injunction and for $5,000 damages.\nDefendant filed answer denying any trespass on plaintiffs\u2019 land. By a further answer, defendant alleged that it owned a 70.16 acre tract of land and that \u201cplaintiffs question the boundary between the plaintiffs and the defendant and the plaintiffs have created a dispute as to said boundaries.\u201d Defendant asked that the line dividing its lands from plaintiffs\u2019 lands be established.\nA temporary order restraining defendant from going upon plaintiffs\u2019 lands was entered and, by consent, upon the posting of a substantial bond by plaintiffs, the order was continued in full force and effect pending a determination of the issues.\nOn 14 September 1972, defendant filed a motion asking that the restraining order be dissolved. Following a hearing, Judge Armstrong entered an order on 28 September 1972 denying the motion but on the same day entered a second order in which, among other things, he appointed surveyors to survey the lands involved in the litigation.\nOn 11 May 1973, defendant filed motion pursuant to Rule 56 asking for summary judgment as to the 3.02 acre tract and that the restraining order as to it be dissolved for that (1) the survey made by court appointed surveyors shows that the disputed line of that tract is as contended by defendant, and (2) proper parties have not been made as ordered by the court on 4 April 1973.\nOn 31 May 1973, following a hearing on defendant\u2019s motion for summary judgment, Judge Seay entered a \u201cjudgment\u201d which included the following:\n(1) Findings that this action came on for trial before Judge Crissman at the 2 April 1973 Session of Randolph Superior Court; that plaintiffs\u2019 evidence at the trial disclosed that the heirs at law of J. A. Sikes (rather than Ethel L. Sikes) were co-owners with plaintiffs Presnell of the 3.02 acre tract; that Judge Crissman declared a mistrial for reason that the J. A. Sikes heirs were not parties to the action and instructed counsel for plaintiffs to make said heirs parties to the action within 30 days from 5 April 1973; that said heirs have not been made parties and they are necessary parties to a final determination of the issues in this action.\n(2) Concluded that this action can be tried in a more orderly manner by a trial as to the lands owned by plaintiffs Presnell separately from a trial involving the 3.02 acre tract in which the J. A. Sikes heirs own an interest.\n(3) Ordered that this action be dismissed as to the 3.02 acre tract, and the restraining order as to it be dissolved, all \u201cwithout prejudice,\u201d and this action shall remain in full force and effect as to the other two tracts.\n(There were other proceedings and orders entered prior to Judge Seay\u2019s order but they are not considered pertinent to the questions presented on this appeal.)\nPlaintiffs appealed from Judge Seay\u2019s judgment.\nOttway Burton for plaintiff appellants.\nMoser and Moser, P.A., by Tifiad T. Moser, for defendant appellees."
  },
  "file_name": "0722-01",
  "first_page_order": 750,
  "last_page_order": 754
}