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§ 296. *399. Same Subject. In the second place, the question may be whether the specified individual who is one of those represented by the actual plaintiff, is concluded and bound by the judgment rendered in the action. This question will generally arise at a subsequent time, and in another action brought by or against the individual, and involving the same issues as those embraced in the former controversy. Is this person bound by the former judgment? Of course he is not bound unless he was practically a party to the proceeding; the plainest principles of common justice refuse to hold a man concluded if he has not had "a day in court." When the matter is presented in this aspect, the strict rule of the equity courts first above stated must be controlling. If the subsequent proceeding is a hostile one against the person, the former adjudication cannot be relied upon as an estoppel or as conclusive, unless he had affirmatively taken the steps which made him an actual party by adopting the suit with all its burdens and benefits, or unless, after having had \notice, and an opportunity of coming in and making himself such a party, he had refused or neglected to do so. If, however, this subsequent proceeding is on behalf of the person, set in motion by him, the same doctrine must apply; he cannot under exactly the same circumstances claim and receive the benefits of the former litigation, but disclaim and be freed from its burdens. and disabilities.

The con

§ 297. *400. Conclusion of Author from Discussion. clusion to which I arrive from the foregoing discussion may be summed up as follows: There may be a marked difference in the manner of enforcing the rule, or even in the rule itself, depending upon the position of the litigation, and the situation of the person who invokes its aid or against whom it is invoked. If the prior suit is still pending, and the purpose of the claimant who belongs to the class of persons represented by the actual plaintiff or defendant, be to take a practical part in the controversy, or to share the benefit of the judgment which has been or · may be rendered, his mere act of making the claim, coupled with a willingness to bear his share of the expenses, will be of itself a sufficiently positive and affirmative act to make him a party to the proceeding and entitle him to his personal relief. Even in this case, however, the action may be of such a nature and the

1 Stevens v. Brooks, 22 Wis. 695.

judgment of such a character, that a separate order or adjudication of the court will be necessary in order to determine the particular rights under the general decree of each party, and to award to him his special portion of the general relief. The case already mentioned of the different judgment creditors interested in the result of an ordinary creditors' suit, is a sufficiently illustrative example. If, however, the prior suit has been terminated, and the question arises in a subsequent controversy, and involves the conclusive effect of the former adjudication upon the class of persons represented by the actual parties, in order that such judgment should be conclusive upon any particular person of the class either in his favor or against him, there must have been the previous formal act on his part of applying to the court, and an order thereon making him a party to the action, so that his name should have appeared in some manner upon the record; or it must be shown that he had notice of the proceedings, and an opportunity to unite in them of which he neglected or refused to avail himself. These views and conclusions reconcile the decisions which at first sight appear to be conflicting, and they present a practical and harmonious rule of procedure.1 § 298. * 401. Necessary Averments of Complaint or Petition. It has already been stated that the complaint or petition should contain averments which bring the action within one or the other of the cases mentioned in the section of the codes. The allegations showing the existence of a common or general interest in the questions at issue in the one case, or the impracticability, on account of numbers, of bringing all the persons before the court in the other, should be positive and specific, so that, if denied, an issue may be raised upon them.2 It is not necessary, however, that the persons who, it is alleged, have the common or general interest, or who, it is said, are so numerous that they cannot all be brought before the court, should be named, nor be described with particularity; nor is it necessary that they should be an association or special class, or be described as such. The

1 See on this subject, Story's Eq. Pl. S$ 99, 196; David v. Frowd, 1 Myl. & K. 200; Gillespie v. Alexander, 3 Russ. 130; Farrell v. Smith, 2 Ball & B. 337; Cockburn v. Thompson, 16 Ves. 327; Good v. Blewit, 19 Ves. 336, 339; Leigh v. Thomas, 2 Ves. 312, 313; Hendricks v. Robinson, 2 Johus. Ch. 283, 296; Hallett v. Hallett,

2 Paige, 18, 19; Bilmyer v. Sherman, 23 W. Va. 656; Glide v. Dwyer, 83 Cal. 477, 487. See David v. Frowd, 1 M. & K. 200; Thompson v. Huffaker, 19 Nev. 291.

2 [Castle v. Madison (1902), 113 Wis. 346, 89 N. W. 156; Hodges v. Nalty (1899), 104 Wis. 464, 80 N. W. 726.]

3 Sourse v. Marshall, 23 Ind. 194.

general averment descriptive of the persons as a whole is enough; and the question whether any particular individual is included within it will arise, and must be decided upon his application to be admitted as a participant in the suit while in progress, or in the relief after judgment. If any opposition is made to his application, the matter will be sent to a master or referee to hear and report, and upon his report the court will make the proper order admitting or rejecting the applicant.1

SECTION EIGHTH.

PERSONS SEVERALLY LIABLE UPON THE SAME INSTRUMENT.

§ 299. *402. Reasons for Separate Treatment. Two Classes of Statutory Provisions. The subject-matter of this section has already been treated in a general manner in the discussions relating to joint, joint and several, and several liabilities, and to actions thereon, and to the changes wrought in the common-law rules regulating the same, which are contained in the sixth section of this chapter. It is of so great importance, however, and the statutory provisions have made so sweeping an alteration in the ancient law, and withal there is so marked a difference in the special legislation of the State codes upon this particular topic, that the subject demands an independent and thorough examination. The statutory provisions themselves must be separated into two classes. The first class, which is found in most of the codes, embraces special rules relating only to persons severally liable upon the same instrument, and the language which embodies the enactment is substantially alike in all the statutes which contain the provision at all. The second class, which is found in a portion only of the codes, is much more sweeping and radical in its changes; it embraces rules relating to joint, joint and several, and several liabilities arising upon all contracts; while the language used by the legislatures is not the same in any two of the codes.

§ 300. * 403. Quotation of Statutory Provisions. I quote these two classes of provisions separately. First class. "Persons severally liable upon the same obligation or instrument, including

1 Stevens v. Brooks, 22 Wis. 695.

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all or

the parties to bills of exchange and promissory notes, may any of them be included in the same action at the option of the plaintiff." In Kentucky the section is somewhat varied, and reads as follows: "Persons severally liable upon the same contract, and parties to bills of exchange, to promissory notes placed upon the footing of bills of exchange, or to common orders and checks, and sureties on the same or separate instruments, may all or any of them, or the representatives of such as may have died, be included in the same action at the plaintiff's option." 2-Seeond class. The Missouri code contains the following: "Every person who shall have a cause of action against several persons, including parties to bills of exchange and promissory notes, and who shall be entitled by law to one satisfaction therefor, may bring suit thereon jointly against all or as many of the persons liable as he may think proper, and he may, at his option, join any executor or administrator or other person liable in a representative character, with others originally liable." According to the last revision of the California code, "All persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party." A section is found in the Nevada code nearly the same as the foregoing in most respects, but with one very marked difference: "Tenants in common, joint tenants, or copartners, or any number less than all, may jointly or severally bring or defend, or continue the prosecution or defence of any action for the enforcement of the rights of such person or persons." 995 The changes

1 New York, § 120 (454); Kansas, § 39; Oregon, § 36; Nevada, § 15; South Carolina, § 143; California, § 383; Minnesota, § 35; Nebraska, § 44; Ohio, § 38; North Carolina, § 63; [Utah, Rev. St., 1898, $2918; North Dakota, Rev. Codes, 1899, § 5233, in somewhat different form; South Dakota, Ann. St., 1901, § 6080, same form as in North Dakota; Arizona, Rev. St., 1901, § 1306, in somewhat different form; Oklahoma, St., 1893, § 3911; Washington, Bal. Code, § 4836; Montana, § 585; Idaho, Code Civ. Proc., 1901, § 3171; Wyoming, Rev. St., 1899, § 3483, in somewhat different form; Colorado, § 13; Indiana, Burns' St., 1901, § 271; Wisconsin, St.. 1898, § 2609.]

2 [Kentucky, § 26; Arkansas, Sand. & Hill's Dig., § 5633.]

8 [Missouri, Rev. St., 1899, § 545.]

4 California, code of 1872, § 384; originally statute of 1857, p. 62

5 Nevada, § 14. This section is plainly copied from the California statute of 1857. The change from " coparceners" to "copartners" is remarkable. The use of the word " coparceners" was natural, perhaps, though doubtless entirely unneces sary in the earlier enactments, for certainly no estate in " coparcenary" exists in California. The word used in the Nevada code, unless treated as a mistake, produces a most violent and exceptional change in the prior law. The language

in the common law made by the Iowa and Kentucky codes are radical and complete. In the former: "When two or more persons are bound by contract or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally only, including the parties to negotiable paper, common orders, and checks, and sureties on the same or separate instruments, or by any liability growing out of the same, the action thereon may, at the plaintiff's option, be brought against any or all of them. When any of those so bound are dead, the action may be brought against any or all of the survivors, with any or all of the representatives of the decedents, or against any or all of such representatives. An action or judgment against any one or more of several persons jointly bound shall not be a bar to proceedings against the others." The corresponding section of the Kentucky code differs from this verbally rather than substantially: "If two or more persons be jointly bound by contract, the action thereon may be brought against all or any of them at the plaintiff's option. If any of the persons so bound be dead, the action may be brought

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is not broad enough to cover all joint liabilities arising from contract; the single case of partnership liability is excepted. [See ante, p. 198, note 2, for other statutes of the same character.]

court

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1 [Iowa, Code, 1897 § 3465. Lull v. Anamosa Nat. Bank (1900), 110 Ia. 537, 81 N. W. 784: 'If plaintiff maintains his action against one of several defendants, he may have judgment against that one, and the other defendants may have judgment against plaintiff for costs. The rule is alike applicable to actions ex contractu and ex delicto." Kellogg v. Window (1897), 100 Ia. 552, 69 N. W. 875. In Curran v. Stein (1901), - Ky. 60 S. W. 839, the say: • In Gasson v. Badgett, 6 Bush, 97, it was held that in an action against two upon an alleged joint contract no judgment could be rendered against one upon proof that the contract was made with him alone. But after this decision was rendered by the act of 1888 the following amendment was made to section 131 of the Code of Practice: 'In an action on a contract alleged to have been made by several defendants, in the event the evidence shall show the contract to have been made with less than all those defendants by whom it is alleged to have

been made, this shall not be deemed either a variance or failure of proof, but judgment may be rendered against the party or parties shown to be bound and in favor of those shown not to be bound.'" See also Council Bluffs Savings Bank v. Griswold (1897), 50 Neb. 753, 70 N. W. 376, in which the court construing the Iowa statute quoted in the text said: "The evident purpose of the statute above quoted is to abolish the joint liability of persons bound by contract, judgment, or statute, and to authorize the prosecution of actions against any or all of the parties so liable, at the election of the plaintiff," and see further Schowalter v. Beard (1900), 10 Okla. 454, 63 Pac. 687, as follows: "Another defence urged is that the obligation is joint, and that all the obligors should be made parties defendant. We think sec. 851, page 219 Oklahoma Statutes of 1893, settles this proposition, as all the obligors on this agreement were parties who received some benefit, and the statute above cited makes all such contracts, presumably, joint and several, and the proof shows that all these defendants were owners of, or parties interested in lot 18, on which the wall was partly erected."]