Volume 12 — North Carolina Court of Appeals Reports

Criminal Law 144 — correction of sentence Where the record shows a discrepancy between the pronouncement in open court that defendant be imprisoned for six years and the written judgment that defendant be imprisoned for eight years, the cause is remanded to the trial court for imposition of the six-year sentence.

1. Rules of Civil Procedure 19; Parties 1, 4 — necessary and proper parties Rules of Civil Procedure 19 (a) and (b) make no substantive change in the rules relating to joinder of parties as formerly set out in G.S. <cross_reference>1-70</cross_reference> and G.S. <cross_reference>1-73</cross_reference>. 2. Parties 1, 4 — necessary and proper parties Necessary parties must be joined in an action; proper parties may be joined. 3. Parties 1 — necessary party defined A necessary party is one who is so vitally interested in the controversy that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence. 4. Parties 4 — proper party defined A proper party is one whose interest may be affected by a decree, but whose presence is not essential in order for the court to adjudicate the rights of others. 5. Contracts 24; Parties 1 — necessary parties — third party beneficiary A party to a contract was not a necessary party in an action for breach of the contract brought by a third party beneficiary against the other contracting party. 6. Contracts 24; Parties 4 — breach of contract — action by third party beneficiary — other contracting party as proper party The corporation which had contracted with defendant was a proper party in an action brought by a third party beneficiary against defendant for breach of the contract, where the contract gave the third party the right to purchase certain equipment from defendant at a specified discount price, with the purchase price to be paid to the corporation and set off against an amount owed by defendant to the corporation, and where any amount recovered by the third party in its action against defendant would likewise constitute a set off against the corporation's claim under the contract, and the trial court did not abuse its discretion in ordering the corporation joined as a party. 7. Rules of Civil Procedure 12 — joinder of party not subject to court's jurisdiction — dismissal of action Dismissal of an action is appropriate where a party ordered joined is not subject to the court's jurisdiction. G.S. <cross_reference>1A-1</cross_reference>, Rule 12 (b) (7).<page_number>Page 449</page_number> 8. Rules of Civil Procedure 41 — failure to join necessary or proper party — dismissal of action Dismissal for failure to join a necessary or proper party is not a dismissal on the merits and may not be with prejudice. G.S. <cross_reference>1A-1</cross_reference>, Rule 41 (b). 9. Contracts 14 — breach of contract — action by third party beneficiary A third party beneficiary of a contract is entitled to maintain an action for its breach provided the contract was made for his direct benefit and any benefit accruing to him is not merely incidental. 10. Contracts 24; Parties 2 — breach of contract — third party beneficiary — real party in interest Where a contract entered between defendant and another gave plaintiff the right to purchase certain equipment from defendant at specified discount prices, with the purchase price to be paid by plaintiff to the other party and to be set off against an amount which defendant owes the other party, plaintiff has standing to maintain an action against defendant for breach of the contract.