answer.

214

It is not safe, in any case, to rely upon the nonjoinder of parties as an objection to the hearing; for if the court can make a decree at the hearing that will do entire justice to all the parties, and not prejudice their rights, notwithstanding the nonjoinder, it will not allow the objection to prevail. The true course, therefore, is to take it by way of demurrer, when it is apparent on the face of the bill, or, if not apparent, by plea or by answer.215 If the objection is insisted on only at the hearing, the court will often, if there are merits, allow the cause to stand over, in order to make the new parties, or, if the bill is dismissed, it should be without prejudice.216 An objection of nonjoinder for want of a party defendant, taken at the hearing, will not lie where, so far as the complainant's rights are concerned, the interest of such party is represented by the defendants, and the presence of the absent party is not necessary to a decree against the objectors. 217 Where the bill suggests a reason for not bringing all the parties interested before the court, and the defendant desires to make this objection by plea or answer, the excuse suggested in the bill must be controverted by specially pleading matter which shows it to be false.218 Where a suit is brought by a creditor of a fraudulent vendor to charge a judgment upon land formerly owned and fraudulently con

214 Story, Eq. Pl. § 236; Mitford, Eq. Pl. 280; Spear v. Campbell, 4 Scam. (Ill.) 424; Mitchell v. Lenox, 2 Paige (N. Y.) 280; Tobin v. Walkinshaw, McAll. 26, Fed. Cas. No. 14,068; Carey v. Brown, 92 U. S 171; Story v. Livingston, 13 Pet. (U. S.) 359; Shingleur v. Jenkins, 111 Fed. 452.

215 Story, Eq. Pl. § 237; Florence Sewing Machine Co. v. Singer Mfg. Co., 8 Blatchf. 113, Fed. Cas. No. 4,884; Smith v. Bartholomew, 42 Vt. 356; Adams v. Howard, 22 Fed. 656; Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,100.

216 Story, Eq. Pl. § 236; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424. An objection for want of proper parties, taken on the hearing of a bill in equity, will not prevail unless such parties are necessary to the final determination of the cause. Van Doren v. Robinson, 16 N. J. Eq. 256.

217 Swallow v. Swallow's Adm'r, 27 N. J. Eq. 278.

218 1 Daniell, Ch. Pl. & Pr. (6th Am. Ed.) 290, note; Alger v. Anderson, 78 Fed. 729.

veyed by such vendor, and which has finally fallen into the hands of an innocent vendee, who is not made a party to the suit, and the objection to the absence of such vendee is raised for the first time at the final hearing, it rests in the discretion of the court to refuse to make a decree in the case.219 An objection for want of proper parties comes too late after the decree, unless it is manifest that the absent party is indispensable.220 As a general rule, courts are not inclined to consider favorably objections as to parties made on appeal;221 and an objection for want of proper parties comes too late when first made on appeal, unless such parties are so intimately connected with the subject-matter that a final decision cannot be made without materially affecting their rights.222

57. Objection should point out proper parties.

It is the duty of the defendant, who objects to the bill for want of proper parties, to inform complainant by the pleadings who are the proper parties.223 It is not necessary to point out who are the proper parties by name, for this might be impossible, but the defendant should point out to the complainant the objection to his bill, and enable him to amend by adding the proper parties; and it is said that cases may occur of such a nature as even to require the names to be stated, if the more general description is not sufficient to enable the complainant to

219 Winans v. Graves, 43 N. J. Eq. 263, 11 Atl. 25; Wood v. Stover's Adm'rs, 28 N. J. Eq. 248.

220 Clayton v. Henley, 32 Grat. (Va.) 65.

221 McBurney v. Carson, 99 U. S. 567; Andrews v. Hobson's Adm'r, 23 Ala. 219; Burger v. Potter, 32 Ill. 66; Bridges v. McKenna, 14 Md. 258; Conwell v. Watkins, 71 Ill. 488.

222 Scott v. Bennett, 6 Ill. 646; Conwell v. Watkins, 71 Ill. 488; Lynch v. Rotan, 39 Ill. 14; Washburn-Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71; Farmers' Nat. Bank of Bushnell v. Sperling, 113 Ill. 273; Hitchcox v. Hitchcox, 39 W. Va. 607, 20 S. E. 595.

223 Story, Eq. Pl. § 238; Houghton v. Kneeland, 7 Wis. 244; Greenleaf v. Queen, 1 Pet. (U. S.) 138; Neely v. Anderson, 2 Strob. Eq. (S. C.) 262; Mannhardt v. Illinois Staats Zeitung Co., 90 Ill. App. 315.

ascertain with reasonable certainty the names of the absent parties. 224

§ 58. Correction on court's own motion.

The objection of the nonjoinder of necessary parties, in a clear case, should be raised and acted upon by the court on its own motion, when the parties fail to present the question.225 Where necessary parties are not made, the court of its own motion may refuse to proceed until they are brought in, and proper allegations made to bind them;226 or may order the cause to stand over on leave to amend, or dismiss it without prejudice.227

§ 59. Effect of misjoinder.

The mere misjoinder of formal parties will not oust the court of its jurisdiction in an equity cause.228 The objection that a person is improperly joined as a complainant is too late if taken for the first time at the hearing, and will then be disregarded, if it does not materially affect the propriety of the decree.229 The objection cannot be taken for the first time at the hearing that one was improperly made a defendant, when he has answered fully, tendering issues both of law and fact; and if no decree is rendered against him, his having been made a party cannot affect the decree made against another defendant.230 Where there is a misjoinder of parties complainant, either of

224 Story, Eq. Pl. § 238; Attorney General v. Jackson, 11 Ves. 369; Attorney General v. Wyburgh, 1 P. Wms. 599; Marsh v. Wells, 89 Ill. App. 485; Portones v. Badenoch, 132 Ill. 377, 23 N. E. 349; Hubbard v. Manhattan Trust Co., 57 U. S. App. 730, 87 Fed. 51; Sheffield & B. C. I. & R. Co. v. Newman, 41 U. S. App. 766, 77 Fed. 787. 225 Alexander v. Horner, 1 McCrary, 634, Fed. Cas. No. 169.

226 Banks v. Green, 35 Ark. 84.

227 Goodman v. Benham, 16 Ala. 625.

228 Wormley v. Wormley, 8 Wheat. (U. S.) 421.

229 Newhouse v. Miles, 9 Ala. 460; Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243.

230 Hunley v. Hunley, 15 Ala. 91; Pixley v. Gould, 13 Ill. App. 565; Chipman v. Thompson, Walk. (Mich.) 405; Stout v. Cook, 41 Ill. 447.

the defendants may demur.231 Misjoinder of parties defendant can only be taken advantage of by those improperly joined, and is fatal only against them.232 Thus, where a contractor agrees to pay an employe a percentage of the profits of contracts with different municipalities, a bill by the employe joining the municipalities as co-defendants with the contractor for an account, although subject to dismissal for multifariousness and misjoinder at the instance of one of the municipalities, is not so at that of the contractor. 233 It is not safe to rely upon the misjoinder of parties as an objection to the hearing, for if the court can make a decree at the hearing which will do entire justice to all the parties, and not prejudice their rights, it will not then allow the objection to prevail. The proper course is to demur, when the objection is apparent on the face of the bill, or, if not apparent, raise the objection by plea or by answer. The court will dismiss a bill of its own motion, for misjoinder of complainants, when it appears that their separate interests are of such a nature that they are likely, in the future progress of the cause, to come into conflict, and thus transform the suit into a contest between the complainants.235

§ 60. Position of parties on record.

234

All persons having the same interest should stand on the same side of the suit.236 But the court will not ordinarily dismiss a suit on account of any mere informality in the position in which the parties are placed, as complainants or defendants, if all the parties interested are before the court, and a proper

231 Christian v. Crocker, 25 Ark. 327; Clarkson v. De Peyster, 3 Paige (N. Y.) 336; King of Spain v. De Machado, 4 Russ. 225.

232 Robison v. Robison, 44 Ala. 227; Ware v. Curry, 67 Ala. 274; Norwood v. Memphis & C. R. Co., 72 Ala. 563; Christian v. Crocker, 25 Ark. 327; Peoria, D. & E. Ry. Co. v. Pixley, 15 Ill. App. 283; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618.

233 Olds v. Regan (N. J. Eq.) 32 Atl. 827; Miller v. Jamison, 24 N. J. Eq. 41; 2 Daniell, Ch. Pl. & Pr. (6th Ed.) 337, note 3.

234 Story, Eq. Pl. § 237; Wormley v. Wormley, 8 Wheat. (U. S.) 421. 235 Hendrickson v. Wallace's Ex'r, 31 N. J. Eq. 604; Jacob v. Lucas, 1 Beav. 436; Griffith v. Vanheythuysan, 15 Jur. 421.

236 Contee v. Dawson, 2 Bland (Md.) 264.

case is proved for the interference of the court. 237 It is improper to put the same individual on opposite sides of the record, even though he sues in his own right, and is made defendant in his capacity of personal representative.238 Where a cocomplainant who is a necessary party declines to prosecute the suit further as complainant, and moves the court to dismiss the bill as to him, upon motion of the other complainants the court will transpose him to the other side of the cause as a defendant.239

287 West v. Bank of Rutland, 19 Vt. 403; Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583; Piatt v. Oliver, 3 McLean, 27, Fed. Cas. No. 1,116; McArthur v. Scott, 113 U. S. 386; Parkman's Adm'r v. Aicardi, 34 Ala. 393; Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 93 Fed. 197. 238 Owens v. Crow, 62 Md. 491; Stein v. Stein, 80 Md. 306, 30 Atl. 703; Miller, Eq. Proc. 105; Henderson v. Sherman, 47 Mich. 267, 11 N. W. 153.

239 McConaughey v. Bennett's Ex'rs, 50 W. Va. 172, 40 S. E. 540; Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583.

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