(Filed 3 November, 1948.)
1. Pleadings § 10—
Alleged false arrest sequent to an automobile collision is improperly joined by defendant as a cross-action in plaintiff’s action to recover damages sustained as a result of tbe collision.
2. Pleadings § 31—
The granting of plaintiff’s motion to strike a cross-action not properly pleadable in the action is without error, since the allegations of such cross-action are irrelevant and immaterial to plaintiff’s cause.
Appeal by defendant from Coggin, Special Judge. March Term, 1948, RaNdolph.
Affirmed.
Civil action to recover compensation for damage to the property and injury to the person of plaintiff resulting from the collision of two automobiles, heard on demurrer and motion to strike the cross-action pleaded in defendant’s answer.
On 1 September 1947, an automobile owned and operated by plaintiff and an automobile owned and operated by defendant collided on Highway 64 near Asheboro. Plaintiff was injured and his automobile was damaged. He instituted this action to recover compensation, alleging that the collision was proximately caused by the negligence of the defendant.
The defendant filed answer in which he denies the material allegations in the complaint and sets up and pleads a cross-action for damages for false arrest by one Willard Vestal subsequent to the automobile collision. He alleges that Willard Vestal is a partner of plaintiff, that the automobile operated by plaintiff was the property of the partnership, and that, at the time of the alleged false arrest, Willard Vestal was acting for and in behalf of plaintiff. Willard Vestal has not been made a party to the action.
Plaintiff appeared and demurred to said cross-action for misjoinder of parties and causes of action and likewise moved to strike the same. The court below entered judgment sustaining the demurrer and striking said cross-action. Defendant excepted and appealed.
Miller & Moser for plaintiff appellee.
OUway Burton for defendant appjellant.
The judgment of the court below sustaining the demurrer must be affirmed on authority of Hancammon v. Carr, ante, 52. What is there said is controlling here.
As the cross-action is not properly pleadable in this action, the allegations therein contained are irrelevant and immaterial. Hence there was no error in the judgment striking same.
Affirmed.