[DOWNLOAD] "Howell v. Fisher" by Court of Appeals of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Howell v. Fisher
- Author : Court of Appeals of New York
- Release Date : January 18, 1980
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 55 KB
Description
The issue is whether plaintiff-stockholders suit was properly dismissed under Rule 12(b)(7) for failure to join the corporation as a necessary party. Plaintiffs contend that the court committed error on two alternative bases: (1) that even if the corporation were a necessary party, the action should have been continued to permit joinder; (2) the corporation was not, however, a necessary party because the complaint was an individual claim for personal wrongs done to them by defendants. At the outset, we note that dismissal under Rule 12(b)(7) is proper only when the defect cannot be cured, and the court ordinarily should order a continuance for the absent party to be brought into the action and plead. Booker v. Everhart, 294 N.C. 146, 240 S.E.2d 360 (1978); Carding Developments v. Gunter & Cooke, 12 N.C. App. 448, 183 S.E.2d 834 (1971); Shuford, N.C. Civil Practice and Procedure ? 19-3 (1975); 3A Moores Federal Practice para. 19.07-1[3] (2d ed. 1979); 5 Wright & Miller, Federal Practice and Procedure: Civil ? 1359 (1969). The record does not indicate that plaintiffs were given an opportunity to join the corporation before dismissal. It is unnecessary, however, to formulate a holding on this question since we agree with plaintiffs second contention and reverse the dismissal because the corporation, in these circumstances, was not a necessary party.