other. And the provisions of § 26 of chap. 132 of the Revised Statutes of Wisconsin1 do not affect it, for the reason that the judgment there authorized against one or more of several defendants is only when a several judgment may be proper. It seems to me to be left therefore for the courts to determine according to the general principles of the law governing the subject what the form of the judgment shall be; and, acting upon these principles, it seems very clear to me that the judgment should follow the nature of the claim established; and if that is separate and several as against each defendant, then the judgment should be so."2 The judgment in this case was not, however, reversed, since another section of the Wisconsin code requires the court to disregard any error which does not affect the substantial rights of the parties.

§ 305. 408. Joint and Several Liability may be treated by Promisee or Obligee as Several under Statute herein. — Although persons jointly and severally liable on a contract are not mentioned in this section of the codes, it is within the option of the promisee or obligee in such an agreement to treat it as several, and by his act to render it so to all intents and purposes. A joint and several contract has been held, therefore, to fall within the scope and operation of the provision; and the creditor, in pursuance of its permission, has the election to sue each of the debtors singly, or

1 This section is the general provision relating to judgments, permitting judgment to be rendered for some of the defendants, and against the others, under certain circumstances; it corresponds to [§ 2883, St., 1898.]

was erroneous.

2 Decker v. Trilling, 24 Wis. 610, 613, per Dixon C. J. [In Haasler v. Hefele (1898), 151 Ind. 391, 50 N. E. 361, it was objected that since the cause of action alleged was joint a separate judgment against each of the two defendants for one-half the amount of plaintiff's claim In answer to this objection the court said: "If any one should complain of this it would seem to be the appellee, who was not given the joint judgment for which she had asked in her complaint. In answer to a similar objection, it was said by this court in Louisville, etc. R. W. Co. v. Treadway, 143 Ind. 689: 'The authorities cited by appellant in support of the rule asserted can have no

force in this State, for the reason that the question is regulated by our code of civil procedure.'' And it is said the statute provides: "Though all the defendants have been summoned, the judgment may be rendered against any of them severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them severally." See Bunnell v. Berlin Iron Bridge Co. (1895), 66 Conn. 24, 33 Atl. 533, in which the court say: "Independently however of such authority, we think the provisions of the Practice Act for including in one action parties defendant having separate and even antagonistic interests, and for authorizing the court by orders for separate trials and otherwise to protect their differing interests, clearly implies the possibility of a final judgment' as to one party, although the action continues in court for the disposition of the rights of other parties."]

to sue all, or to sue any number of them. The question might arise, whether, if he elected to sue all, the contract would be regarded as joint in accordance with the former practice, or whether by virtue of this statutory enactment it would be taken as several. I am not aware that this question, which perhaps has little practical importance, has been passed upon by the courts. § 306. *409. Case of Guarantor and Principal Debtor. Weight of Authority. Rule in Iowa. It has been decided in many cases, and undoubtedly the weight of authority sustains this ruling, that a guarantor and the principal debtor cannot be sued together in one action; even though the guaranty be written upon the same paper with the agreement which it undertakes to secure. It is said that the principal debt and the collateral undertaking do not constitute one instrument, and the parties therefore do not come within the language of the statute.? A different rule, however,

1 Decker v. Trilling, 24 Wis. 610, 612; Clapp v. Preston, 15 Wis. 543; Burgoyne v. O. L. Ins. & Tr. Co., 5 Ohio St. 586; People v. Edwards, 9 Cal. 286; People v. Love, 25 Cal. 520, 526. Action on a joint and several bond. The court held it governed by the statute as though several. It has been said, therefore, that this provision has in effect destroyed joint and several liability arising on single express written contract. Heppe v. Johnson, 73 Cal. 265; Steffes v. Lemke, 40 Minn. 27.

2 Le Roy v. Shaw, 2 Duer, 626; De Ridder v. Schermerhorn, 10 Barb. 638; Allen v. Fosgate, 11 How. Pr. 218; Phalen v. Dingee, 4 E. D. Smith, 379; Carman v. Plass, 23 N. Y. 286, 287, per Denio J.; Bondurant v. Bladen, 19 Ind. 160; Virden v. Ellsworth, 15 Ind. 144. See also Burton v. Speis, 5 Hun, 60; Graham v. Ringo, 67 Mo. 324; Tyler v. Tualatin Academy, 14 Ore. 485. For a form of contract under which the guarantor may be sued jointly with the principal debtor, see Decker v. Gaylord, 8 Hun, 110, a case analogous to Carman v. Plass, cited in the following note. [Loustalot v. Calkins (1898), 120 Cal. 688, 53 Pac. 258. In this case Calkins had indorsed note sued upon before delivery and under section 3117 of the Civil Code of that State thereby became liable as an indorser. One Liben and A. C. Calkins, the makers, and J. W. Calkins were joined as defendants. J. W. Calkins

demurred because of a "misjoinder of parties defendant in that J. W. Calkins, an alleged and supposed guarantor, is joined with the principal promisors." A joint and several judgment was rendered against the defendants. For reversal upon appeal one of the two grounds relied upon was "the demurrer of J. W. Calkins to the complaint should have been sustained." The court said: "In speaking as to parties who may be joined as defendants, the Code of Civil Procedure, section 383, declares: 'Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff.' By a liberal construction of this provision it may be fairly said that an indorser, such as the defendant Calkins, is a party to the promissory note. . . .

"The object of this section of the law is directed solely to the avoidance of a multiplicity of actions. And we see no substantial objection to the application of the rule to a case like the one at bar. Upon an examination of the authorities from other States having statutory provisions substantially similar to the one found in our code, we find those authorities preponderating to the effect that a guarantor and the maker of a promissory note may

prevails in Iowa, and it is there held in a series of cases, that the guarantor and the principal debtor may be sued in one action, since they are liable for the same debt, and are, within the meaning of the section, bound upon the same instrument.1

§ 307. *410. When Liability arises from same Instrument. - A surety or guarantor may be joined as a co-defendant with his principal if the contract be in such a form and of such a nature that his liability arises from the same instrument. A lease made between the lessor of the first part, and the lessee A. of the second part, and B. of the third part, contained the usual clauses of demise to A. and covenants on his part to pay rent, etc., and also a covenant, on the part of B., whereby "he did, in consideration of the premises and of the sum of one dollar, guarantee unto the lessor the payment of the aforesaid rent, and the faithful performance of the covenants in said lease contained.” The instrument was signed and sealed by all the parties. The New York Court of Appeals held that the lessor might, by virtue of the section under consideration, maintain an action against A. and B. to recover a sum due for rent. The case was distinguished from the others cited above, in reference to ordinary guaranties, since the parties to this lease were made liable by the same instrument.2 I cannot refrain from expressing the opinion

not be joined as parties defendant; but that question is not directly before us, and we pass it by for that reason. In this State from its earliest judicial history the makers and indorsers of negotiable promissory notes have been joined as parties defendant, and no question as to the correctness of the practice has ever been suggested. For this reason alone we feel constrained to give the statute a construction it has tacitly borne for so many years. The demurrer was properly overruled."

See also Gilmore v. Skookum Box Factory (1899), 20 Wash. 703, 56 Pac. 934, where it was held that under Bal. Code, § 4836, providing that persons severally liable upon the same promissory note may all, or any of them, be included in the same action, a complaint declaring against the maker of a note on his written undertaking, and also against another party on a verbal promise to pay the same note, is not demurrable on the

ground of improperly uniting two causes of action.]

1 Tucker v. Shiner, 24 Iowa, 334; Mix v. Fairchild, 12 Iowa, 351; Marvin v. Adamson, 11 Iowa, 371; Peddicord v. Whittam, 9 Iowa, 471.

2 Carman v. Plass, 23 N. Y. 286, 287. Where an administrator in the course of his administration gave two bonds with different sureties, but the undertaking and the liabilities of the sureties being the same in each, it was held, in California, that all the sureties on both bonds could be sued in one action under the special provision of the code in that State. Powell v. Powell, 48 Cal. 234; [Stoner v. Keith County (1896), 48 Neb. 279, 67 N. W. 311. "It is further claimed that there was a misjoinder of parties; that the sureties on the first bond should not have joined in an action with those who signed the second. Under the view that the default of the treasurer occurred after the execution of the second bond,

that this is a distinction without a difference. Believing that the decision of the court was right, it is impossible to discriminate the cases of ordinary guaranties from it by any valid and substantial reasons. By permitting parties to a contract resembling this lease to be joined in a single action, and refusing to admit the same form of suit against a principal debtor and his guarantor, whose undertaking is perhaps indorsed upon the same writing, the courts in fact make the nature of their obligation to depend upon the position of the written matter on the paper, and not upon the terms and nature of their agreements. The rules of procedure, as established by the reformed system, were never designed to be controlled by such considerations. The judicial decisions which illustrate the second class of provisions quoted at the commencement of this section have already been cited and discussed in section sixth, and need not be repeated here.

SECTION NINTH.

BRINGING IN NEW PARTIES: INTERVENING.

As the

§ 308. * 411. Two Types of Code Provisions herein. equitable theory of parties was adopted in the new procedure, we should naturally expect some provision for changing them, either by addition or diminution. In accordance with this expectation, the codes all contain sections prescribing rules more or less elaborate and explicit for the guidance of the courts in this respect. They follow two different types. The one is the mere statement in a statutory form of the doctrine as to bringing in new parties which had long prevailed in courts of equity, and to it is added a provision which permits a summary interpleader to be ordered by the court, upon motion, in certain specified cases, thus avoiding the delay and trouble of a formal interpleader suit. The New York code adopted this type, and it has been followed, sometimes with slight variations, but often with literal exactness, by most of the State codes and practice acts. The other type is entirely different. It discards entirely all the ancient notions; it goes far beyond the concessions made by the equity courts; it creates,

the sureties on both bonds were properly joined as parties defendants. They were each and all liable for the failure of the

principal to faithfully perform the duties of his office."]

under the title "Intervention," or "Intervening," a new division of the procedure. The fundamental notion is, that the person ultimately and really interested in the result of a litigation - the person who will be entitled to the final benefit of the recovery — may at any time, at any stage, intervene and be made a party, so that the whole possible controversy shall be ended in one action and by a single judgment. The States which have adopted this type to its fullest extent are Iowa and California, and their example has been followed in a number of others.

§ 309. *412. Statutory Provisions of First Form. The provisions which follow the first form, as thus described, are all represented by the sections contained in the New York code: "The court may determine any controversy between the parties before it, where it can be done without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.

"And when in an action for the recovery of real or personal property a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment.

"A defendant against whom an action is pending upon a contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in the court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order." 1

1 [The present New York statute reads as follows: Code Civ. Pro., § 452: "The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where

a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment." Code Civ. Pro., § 820: "A defendant against whom an