#### H. A. BARGEON v. SEASHORE TRANSPORTATION COMPANY, Inc., and DOVER-SOUTHBOUND RAILROAD COMPANY.

(Filed 27 March, 1929.)

Parties Defendant — Joinder—Joint Tort-Feasors — Demurrer—Canse of Action.

Where a defendant has another party joined as a codefendant, and files an answer denying the allegations of negligence on his part and alleging that the negligence of such codefendant was the sole proximate cause of the injury in suit, but does not demand relief against such eodefendant, and the complaint states no cause of action against him, the demurrer of the codefendant to the answer is good, and the action as to him will be dismissed. In this case the statute in regard to contribution between joint tort-feasors does not apply, the cause of action arising before its passage and operation.

Civil actioN, before Grady, J., at November Term,. 1928, of LeNoir.

The plaintiff in this action was a passenger in the same bus referred to in the companion case of Vivian v. Transportation Co-., ante, 774, where the facts are stated in detail.

The Transportation Company, upon motion, procured an order, making the Railroad Company a party, and summons was duly issued and served. Thereupon the Transportation Company filed an answer, denying negligence and alleging that any injury sustained by the plaintiff was proximately caused by the negligence and carelessness of the Railroad Company as specifically set out in the answer. No relief, however, against the Railroad Company was asked by the Transportation Company.

The Railroad Company demurred to the complaint and to. the answer of the Transportation Company upon the ground that no cause of action was stated in either pleading. The plaintiff filed no amended complaint, *777and, at tbe November Term, 1928, tbe presiding judge sustained tbe demurrer and dismissed tbe action as against tbe Railroad Company, from wbicb judgment tbe Transportation Company appealed.

Dawson & J ones for Transportation Company.

Warren & Warren for Doner-Southbound Railroad Company.

BeogdeN, J.

Can one defendant, sued alone for personal injury, file an answer denying negligence and liability, and tben proceed to allege tbat tbe injury was due to tbe specific acts of negligence of a third party, and thereupon, without asking relief against such third party, have such party brought into tbe suit ?

It is well settled under our system of procedure tbat in order to bold a party in court a cause of action must be alleged against him. If a defendant against whom a cause of action exists alleges a cause of action against a codefendant, growing out of tbe same matter, tben all tbe parties are in court and tbe causes must be tried upon their merits. Bowman v. Greensboro, 190 N. C., 611, 130 S. E., 502; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.

Tbe Ballinger case established two propositions of law:

First, tbat tbe plaintiff bad alleged no cause of action against tbe appealing defendant.

Second, tbat tbe eodefendant, Thomas, bad not sufficiently alleged a cause of action against tbe appealing defendant.

In other words, in tbat case, tbe plaintiff alleged too much, and tbe defendant, Thomas, too little. Tbe demurrer to tbe complaint was sustained by this Court, and tbe demurrer to tbe answer of Thomas was dismissed because tbe defendant, Thomas, in bis answer denied negligence and set up tbe defense tbat a third party, to wit, tbe Railroad Company, was solely responsible for tbe plaintiff’s injury. A mere defense made by one codefendant is not subject to demurrer by tbe other defendant brought into tbe case. Tbe result was tbat tbe Southern Railway Company went out of tbe case because under tbe pleadings it could not be held either by tbe plaintiff or tbe defendant, Thomas.

Applying tbe principle announced in tbe Ballinger case to tbe pleadings in tbe case at bar, it is clear tbat tbe defendant, Dover-Southbound Railroad Company, cannot be held upon tbe present record, and tbe ruling of tbe court is affirmed.

Tbe amendment of C. S., 618, enacted 27 February, 1929, permitting contribution between joint tort-feasors, does not of course apply to tbe case at bar, for tbe reason tbat tbe amendment creating such a cause of action was passed after this suit was commenced.

Affirmed.