CHAPTER III.

PARTIES TO SUITS IN EQUITY.

§ 18. Distinction between parties at law and in equity.

The doctrine as to parties constitutes one of the most striking differences between the proceedings in courts of law and the proceedings in courts of equity. Courts of law usually require no more than that the parties directly and immediately interested in the subject-matter of the suit, and whose interests are of a strictly legal nature, shall be parties to it. At law, a disputed issue alone is contested. The immediate disputants alone are bound by the decision, and they alone are proper parties to the action. All other persons who have merely an equitable or remote interest are not only not required to be parties, but are excluded from being made parties, and, if any are improperly joined, the fault may be fatal to the suit. In equity, however, a decree is asked, and not a decision only; and it is therefore requisite that all persons should be before the court whose interests may be affected by the proposed decree, or whose concurrence is necessary to a complete arrangement.2 Thus, for example, at law, the executor and the heir cannot join or be joined in an action, although each may have an interest in the controversy, but in equity they may both join and be joined, and both are often necessary and proper parties.

§ 19. General rule on the subject of parties.

3

The question of who are the proper and necessary parties to a bill in chancery is a subject of great practical importance,

1 Story, Eq. Pl. § 76.

2 Story, Eq. Pl. § 76a; Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Foster, Fed. Pr. (3d Ed.) § 42.

3 Story, Eq. Pl. § 76; Knight v. Knight, 3 P. Wms. 333.

and of considerable difficulty in a great variety of cases. It is a general rule in equity that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, are to be made parties to it, either as complainants or as defendants, however numerous they may be, so that there may be a complete decree which shall bind them all. The reason for the rule is founded on the principle that no man's rights shall be finally disposed of in a court of justice unless he himself is present, or at least unless he has had a full opportunity to appear and vindicate his rights, and also upon the principle that, when a decree is made upon any particular subject-matter, the rights of all persons whose interests are immediately connected with the decision, and affected by it, shall be provided for, so far as they reasonably may be; in other words, so

Story, Eq. Pl. § 72. It is not within the scope of the present work to treat exhaustively of the subject of parties. There are three works treating fully of this subject: Calvert on Parties, Edwards on Parties, and Barbour on Parties. Mr. Justice Story, in his great work on Equity Pleading, and Mr. Daniell, in his work on Pleading and Practice in Chancery, also devote careful attention and much space to the subject.

5 Story, Eq. Pl. § 72, quoted approvingly in Beach, Mod. Eq. Pr. § 54, and in Gregory v. Stetson, 133 U. S. 586; Jessup v. Illinois Cent. R. Co., 36 Fed. 735. For other definitions, see Mitford, Eq. Pl. 164; Calvert, Parties, p. 11; Knight v. Knight, 3 P. Wms. 333; Cockburn v. Thompson, 16 Ves. 321; Caldwell v. Taggart, 4 Pet. (U. S.) 202; Mandeville v. Riggs, 2 Pet. (U. S.) 482; Robinson v. Howe, 35 Fla. 73, 17 So. 368; Whitney v. Mayo, 15 Ill. 251; Hallett v. Hallett, 2 Paige (N. Y.) 15. It has been said that it is not all persons who have an interest in the subject-matter of the suit, but, in general, those only who have an interest in the object of the suit, who are ordinarily required to be made parties. Story, Eq. Pl. § 72; Calvert, Parties, 5, 6, 10, 11. Thus, it has been said: "The general doctrine in relation to parties in equity is often stated to be that all persons interested in the subject-matter of the suit should be made plaintiffs or defendants. This statement is too broad. It would be more accurate to say persons interested in the object of the suit must be made parties; that is, persons who are parties to the interest involved in the issue, and who must necessarily be affected by the decree." Michigan State Bank v. Gardner, 3 Gray (Mass.) 305; Fletcher v. Newark Telephone Co., 55 N. J. Eq. 47, 35 Atl. 903.

Mitford, Eq. Pl. 164; Story, Eq. Pl. § 72; Knight v. Knight, 3 P.

that the decree shall terminate, and not instigate, litigation." The truth is that the general rule in relation to parties does not seem to be founded on any positive and uniform principle, and therefore it does not admit of being expounded by the application of any universal theorem as a test. It is a rule founded partly in artificial reasoning, partly in considerations of convenience, partly in the solicitude of courts of equity to suppress multifarious litigation, and partly in the dictates of natural justice, that the rights of persons ought not to be affected in any suit without giving them an opportunity to defend them.8

§ 20. Converse of general rule true.

The converse of the general rule is also well established. No person should be made a party complainant in whom there exists no interest.9 An orator without any interest in the subject-matter of the bill is not entitled to a decree.10 It is necessary that he should have an interest in the subject of the suit, or a right to the thing sought.11 So, also, no one need be made a party defendant from whom nothing is demanded,12 nor against whom, if brought to a hearing, the complainant can have no decree,13 nor who would not be at liberty to answer and contest the right to the relief prayed.14 Thus, a residuary legatee need not be made a party to a bill by a legatee against an

Wms. 331; West v. Randall, 2 Mason, 190, Fed. Cas. No. 17,424; Howard v. Corey, 126 Ala. 283, 28 So. 682.

7 Caldwell v. Taggart, 4 Pet. (U. S.) 190; Austin v. Richardson, 1 Grat. (Va.) 316.

8 Story, Eq. Pl. § 76c, quoted with approval in Fitzgibbon v. Barry, 78 Va. 755, and Union Mill. & Min. Co. v. Dangberg, 81 Fed. 73.

Story, Eq. Pl. §§ 225-235; Kerr v. Watts, 6 Wheat. (U. S.) 550; Bowles v. McAllen, 16 III. 30.

10 Hadlock v. Williams, 10 Vt. 570.

11 Gaston v. Plum, 14 Conn. 344.

12 Kerr v. Watts, 6 Wheat. (U. S.) 550; Linnell v. Lyford, 72 Me. 280.

18 Story, Eq. Pl. § 231; Mitford, Eq. Pl. 160; Todd v. Sterrett's Legatees, 6 J. J. Marsh. (Ky.) 425.

14 Lee V. Colston, 5 T. B. Mon. (Ky.) 238.

executor.1 15 The vendor's mortgagee is not a proper party to a suit to rescind a contract of sale, for, as the land is always subject to his claim, he is not concerned.16

$ 21. Exceptions to the general rule in regard to parties.

The general rule in relation to parties is not inflexible.17 Subject to certain limitations, it is a rule of discretion, rather than of absolute right,18 and may be dispensed with in certain cases when it becomes extremely difficult or inconvenient, but not where the rights of persons are so inseparably connected with the claims of parties litigant that no decree can be made without impairing the rights of the former.19 It follows from the fact that the general rule is open to exceptions, limitations, and qualifications, the nature and extent of which are not, and cannot, independently of judicial decisions, be always clearly defined, 20 that it is important to ascertain what are the admitted exceptions to the general rule, and the foundation thereof; for when such exceptions, and the grounds thereof, are understood, they are valuable in affording aid in applying the rule and the exceptions to new cases when they arise.21

Exceptions to the rule may be divided into the following

heads:

(1) An exception founded upon the utter impracticability of making the new proper or necessary parties, resulting: (a) When such new parties are without the jurisdiction of the court, and when, consequently, they cannot be reached by the process of the court; (b) where the personal representative of a deceased person is a necessary party, and it is charged in the bill that no such representative is in existence; (c) if the per

15 Todd v. Sterrett's Legatees, 6 J. J. Marsh. (Ky.) 425; De Golls v. Ward, 3 P. Wms. 310, note 1; Lawson v. Barker, 1 Brown, Ch. 303. 16 Orendorff v. Tallman, 90 Ala. 441, 7 So. 821.

17 Webster v. French, 11 l. 254.

18 Birdsong v. Birdsong, 2 Head (Tenn.) 289; Elmendorf v. Taylor, 10 Wheat. (U. S.) 152; Wiser v. Blachly, 1 Johns. Ch. (N. Y.) 437.

19 Hallett v. Hallett, 2 Paige (N. Y.) 15.

20 Story, Eq. Pl. § 76c; Calvert, Parties, pp. 1-11.

21 Story, Eq. Pl. § 76c.

sons who are proper parties are unknown to the complainant, and the fact is so charged in the bill, and the bill seeks a discovery of those parties for the purpose of bringing them before the court.

(2) Where the parties are exceedingly numerous, and it would be impracticable to join them without almost interminable delays and other inconveniences, which would obstruct and probably defeat the purposes of justice, and a decree can be made without injury to the persons not actually before the court,—under which head of exceptions may be classed: (a) Where the question is one of a common or general interest, and one or more sue or defend for the benefit of the whole; (b) where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; (c) where the parties are very numerous, and, although they have or may have separate or distinct interests, yet it is impracticable to bring them all before the court.

(3) Persons whose interests are very small.

(4) Persons with interests created to oust jurisdiction.

(5) Persons disclaiming all interest in the controversy, or against whom rights are waived, or who consent to the decree. Each of these headings, and the subdivisions thereof, will now be considered.

§ 22. (1a) Parties without the jurisdiction.

When new parties are without the jurisdiction of the court, and consequently cannot be reached by the process of the court, to require such persons to be made parties would be equivalent to a dismissal of the suit, and amount to a denial of justice. Therefore, when persons who ought to be parties are out of the jurisdiction of the court, if the fact is stated in the bill, and admitted by the answer, or proved, if denied, at the hearing, such fact constitutes a sufficient ground for dispensing with their being made parties, and the court will proceed to a decree without them. Thus, as a rule, to a bill against a part