#### W. J. SHUFORD, Receiver of the Y. & B. CORPORATION, v. J. YARBROUGH et al.

(Filed 27 November, 1929.)

1. Pleadings D lb — Action will be dismissed fox* misjoinder of parties and causes, but will be divided where there is misjoinder of causes.

Upon demurrer, when it appears from the complaint that there is a mis-joinder of both parties and causes of action, the action will be dismissed, C. S., 511, but where it only appears that there is a misjoinder of causes, the case will be retained and the several causes divided into as many actions as may be necessary for the proper disposition of the case. C. S., 516.

2. Pleadings D e — Upon over-ruling of demurrer and appeal taken therefrom it is error for court to set time for filing answer.

Where a demurrer to an action upon the ground of misjoinder of parties and causes of action has been overruled in the Superior Court and the judgment of the Superior Court is affirmed in the Supreme Court, the demurring party has the statutory right to file an answer at any time within ten days after the Superior Court has received the certificate of the opinion of the Supreme Court, of which statutory right the Superior Court cannot deprive him, C. S'., 515, and it is error for the trial court in overruling the demurrer to require the defendant to file an answer at a fixed time, there being no finding that the demurrer was frivolous. C. S., 599.

Appeal by defendants from *Stacie, J.,*at April Term, 1929, of MecexeNbueg.

Tbe plaintiff brought suit against tbe defendants as directors of tbe Y. & B. Corporation to recover a large sum of money for tbe benefit of tbe creditors and tbe stockholders of tbe corporation on account of tbe alleged misapplication of its assets. Tbe defendants demurred to tbe complaint on tbe ground that it shows a misjoinder of parties and causes of action. Tbe demurrer was overruled; judgment by default was given for want of an answer; and tbe cause was then referred to a referee who was to bear tbe evidence, ascertain tbe liability, if any, of tbe defendants, and to make bis report to tbe court. Tbe judgment contains this provision: “If tbe defendants shall file their answer to- tbe complaint in tbe office of tbe Superior Court of Mecklenburg County on or before 10 o’clock a.m., 13 April, 1929, then and in that event tbe part of this judgment which is by default for want of an answer shall stand stricken out and tbe referee will bear tbe case on all tbe pleadings on file and report bis findings and conclusions as required above.” Tbe defendants excepted and appealed.

*Preston & Boss and F. B. Cline for receiver.*

*Tillett, Tillett & Kermedy for unsecured creditors.*

*Fred B. Seims, F. W. Orr, Jadee F. Newell, Wade S. Williams, John Newitt, Fred Hunter and Pharr & Currie for a\ppeTtcúnts.*

*6Adams, J.

A defendant may demur to the complaint when it appears upon tbe face thereof that . . . there is' a defect of parties plaintiff or defendant, or that several causes of action have been improperly united. C. S., 511. If it appears from the complaint that there is a misjoinder both of parties and of causes of action and a demurrer is interposed, not only will the demurrer be sustained, but the action will be dismissed. *Bank v. Angelo,*193 N. C., 576. But if the demurrer is sustained for the reason that several causes of action have been improperly united, the several causes may be divided into as many actions as may be necessary for their proper determination. C. S., 516; *Gattis v. Kilgo,*125 N. C., 133.

The defendants demurred to the complaint for an alleged defect of parties plaintiff and defendant, for an alleged misjoinder of causes of action, and for the alleged insufficiency of the complaint to state a cause of action. ¥e need not discuss each of these phases in its relation to the allegations in the complaint; the demurrer admits the allegation that in order to pay the creditors it is necessary to sue the directors. There is no misjoinder of parties, and there being no fatal misjoinder of causes of action the demurrer was properly overruled. *Trust Co. v. Peirce,*195 N. C., 717. Even if two causes of action are to some extent inconsistent, the complaint is not always on that account demurrable. *Worth v. Trust Co.,*152 N. C., 242.

The judgment, however, is not free from error. If a judgment overruling a demurrer is affirmed on appeal to the Supreme Court the demurring party may file an answer at any time within ten days after the lower court receives the certificate of the Supreme’ Court. C. S., 515. This is a statutory right of which the trial court cannot deprive him. There is no finding that the demurrer was frivolous. C. S., 599. The judgment is affirmed to the extent of overruling the demurrer; the remainder of it is stricken out, and as .thus modified the judgment is affirmed.

Modified and affirmed.