Distinguished
Distinguished by Horton v. . Perry, 229 N.C. 319 (1948)
228 N. C., 745, 46 S. E. (2d), 849, cited by defendant, is distinguishable from the instant case because of the difference of factors entering into the decision.
The opinion
Barnhill, J.
The question the appellants seek to present for decision on this appeal has already been decided by this Court.
Powell v. Smith,
216 N. C., 242 , 4 S. E. (2d), 524 . That case controls decision here.
The new parties were brought in at the instance of the appellants “in order that the entire controversy can be settled in one action.” They have filed answers which raise issues, the answers to which will tend to settle the whole controversy. This is in conformity with the express desire of the original defendants which was made the basis of their original motion. They are not now in position to object. They will not be permitted to blow hot and cold in the same action. They brought the new parties in and must abide the consequences.
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Furthermore the several causes of action alleged by plaintiff and the new parties all grew out of the same collision. They are against the same defendants. The original plaintiff seeks no relief against the new parties, who are, in effect, additional parties plaintiff. Should we order a severance and require Clifford Grant and H. E. Grant to institute independent actions, the court below would have authority to, and probably would, order a consolidation for trial.
Peeples v. R. R., ante,
p. 590. Why march up the hill just to march down again ?
Montgomery v. Blades,
217 N. C., 654 , 9 S. E. (2d), 397 , relied on by appellant,
Burleson v. Burleson,
217 N. C., 336 , 7 S. E. (2d), 706 ,
Schnepp v. Richardson,
222 N. C., 228 , 22 S. E. (2d), 555 , and like cases are distinguishable.
The judgment below is
Affirmed.