If a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. The force and effect of the whole provision depend upon the interpretation given to the clause, "when a complete determination of the controversy cannot be had without the presence of other parties." To use the language of an eminent judge which has been repeatedly approved by other courts in different States, this clearly means, "When there are other persons, not parties, whose rights must be ascertained and settled. before the rights of the parties to the suit can be determined. Doubtless there are many other cases in which a defendant may require other parties to be brought in, so that the judgment of the court in the action may protect him against the claims of such other parties; but this is his own privilege and he may the facts of this particular case. We are of the opinion that it was, and that the error was one which deprived the appellant of his legal right to have any transitory action which the respondent might bring against him tried in the district court of the county in which he resided, unless the place of trial was changed by the court for cause. . . . The statute now provides that whenever the plaintiff or defendant, or in case of counterclaim, or a demand for affirmative relief, in any action shall discover that any party ought, in order to a full determination of such action, to have been made a party plaintiff or defendant therein, the court, if satisfied that such is the case, shall make its order bringing in such new party, and require him to answer the complaint, or reply to the answer, as the case may be. That is, it is only when the bringing in of other parties is necessary to a full determination of the controversy between the original parties tendered by the complaint, answer, or counterclaim that the court can compel them to come into the action as parties plaintiffs or defendants. Now, the defendant's so-called counterclaim in this action tenders no issue between the original parties to the action for a full determination of which it is necessary that appellant should be made a party plaintiff. It is simply an allegation of a cause of action wholly distinct from the cause of action alleged in the complaint, and with which the plaintiff has no connection. We have here a case where the defendant denied all of the allegations of the complaint, and alleged that the appellant commenced the action in the name of the land company without authority. This did not make it necessary to bring in the appellant as a party in order to secure a full determination of the controversy between the plaintiff and the defendant, for, if his answer was true, he was entitled to a judgment against the plaintiff on the merits. But the respondent, conceiving that he had an independent cause of action against the appellant, alleges it in his answer, and makes it the basis of the order compelling the appellant to reply to the answer and litigate the action with him in the county of Clay In this way the original action is converted into one by the respondent against the appellant, the former being in fact the plaintiff and the latter defendant, whereby the appellant is deprived of his legal right to a trial thereof in the county where he resides. It needs no argument to support the conclusion that the statute authorizes nothing of the kind, and that there has been a miscarriage of justice in this case. We therefore hold that the order of the district court making the appellant a party and requiring him to reply to the answer was reversible error, and that the action should have been dismissed as to him." See to the same effect East Riverside Irrigation District v. Holcomb (1899), 126 Cal. 315, 58 Pac. 817.] ment. waive it." The distinction between the two conditions here spoken of is plain. In the first, the rights of the parties to the record are so bound up with those of others, that they cannot be ascertained and fixed without at the same time ascertaining and fixing the rights of the others also, and to do this, these others must of course be before the court. In the second, the issues between the parties to the record can be decided, but the relations of the defendant towards third persons are of such a nature that they will be affected by the decision, and it would be better and safer for him if these persons should be brought in so that his relations might be defined and protected in the single judgSuch a proceeding is not, however, absolutely necessary to the determination of the controversy, and the defendant may waive his claim to the additional parties; it is, in fact, a privilege, not an absolute necessity. The circumstances and relations to which I allude were aptly described and the rule concerning them accurately stated by another judge: "There are cases in which it is proper and necessary to make a person defendant upon the ground of avoiding a multiplicity of suits. His rights may not be directly affected by the decree, but it may occur that if the plaintiff succeeds, the defendant will thereby acquire the right to call upon the party omitted or not joined, either to reimburse him or reinstate him in the position lost by the plaintiff's success. And if so, the person consequently liable to be thus affected should be before the court that his liability may be adjudicated by one proceeding."2 § 316. *419. Same Subject. If the case comes within the first described condition, that is, if there are other persons, not parties, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined, then the 1 McMahon v. Allen, 12 How. Pr. 39, 45, per Woodruff J.; affirmed, 3 Abb. Pr. 89; approved, Chapman v. Forbes, 123 N. Y. 532, 538. 2 Camp v. McGillicuddy, 10 Iowa, 201, per Wright C. J., citing 1 Dan. Ch. Pr. 329; Story's Eq. Pl. § 173; Wiser v. Blachly, 1 Johns. Ch. 437. See also Forepaugh v. Appold, 17 B. Mon. 632; Baas v. Chicago & N. W. Ry. Co., 39 Wis. 296; Oro Fino, &c. Min. Co. v. Cullen, 1 Idaho, 113; Clark v. Stanton, 24 Minn. 232; Penfield v. Wheeler, 27 id. 358; Judy v. Farmers' & Traders' Bank, 70 Mo. 407; Southal v. Shields, 81 N. C. 28; Isler v. Koonce, 83 id. 55; Hodges v. Kimball, 49 Iowa, 577; Prouty v. Lake Shore & M. S. R. Co., 85 N. Y. 272; Dows v. Kidder, 84 id. 121; New York Milk Pan Co. v. Remington Works, 25 Hun, 475; Abbott v. Jewett, 25 id. 603; Delancy v. Murphy, 24 id. 503; Dubbers v. Goux, 51 Cal. 153; Robinson v. Gleason, 53 id. 38; Pfister v. Wade, 56 id. 43; Derham v. Lee, 87 N. Y. 599. statute is peremptory; the court must cause such persons to be brought in; it is not a matter of discretion, but of absolute judicial duty. The enforcement of this duty does not rest entirely. upon the parties to the record. If they should neglect to raise the question, and to apply for the proper order, the court, upon its own motion, will supply the omission, and will either directly bring in the new parties or remand the cause in order that the plaintiff may bring them in.2 The fact that the necessary party is a non-resident of the State does not change the rule; he must still be brought in.3 The addition of the necessary party may be made at any stage of the cause." The action of the court may consist in requiring necessary defendants to be served with process, who had been named on the record, but not brought in by actual service or appearance.5 This per $317. *420. Same Subject. Limitations herein. emptory duty does not arise unless the conditions of the statute. are fully met, and the court will not order in new parties defendant, against the will of the plaintiff, unless they are actually necessary in the sense already defined. Thus, in an action 1 Davis v. Mayor, etc. of N. Y, 2 Duer, 663; 3 Duer, 119; Shaver v. Brainard, 29 Barb. 25; Sturtevant v. Brewer, 9 Abb. Pr. 414; Mitchell v. O'Neale, 4 Nev. 504; Jones . Vantress, 23 Ind. 533; Johnson v. Chandler, 15 B. Mon. 584, 589; Johnston v. Neville, 68 N. C. 177; Whitted v. Nash, 66 N. C. 590; [Eureka ». Gates, (1898), 120 Cal. 54, 52 Pac. 125. In this case the court said: "The rule is not questioned that, under our practice, when new parties are necessary for the determination of the issues raised by a cross complaint they may and should be brought in." See also Chalmers v. Trent (1894), 11 Utah, 88, 39 Pac. 488. For valuable and interesting case in this connection see Steinbach v. Prudential Ins. Co (1902), 172 N. Y. 471, 65 N. E. 281. See also dissenting opinion in this case. Hannegan v. Roth (1896), 12 Wash. 695, 44 Pac. 256. In Emerson v. Schwindt (1900), 108 Wis. 167, 84 N. W. 186, the court said: "But the statute also provides that, when a complete determination of the controversy cannot be had without the presence of other parties. . . the court shall order them to be brought in,' sec. 2610. This language seems to be mandatory." See also Wheeler v. Lack (1900), 37 Ore. 238, 61 Pac. 849, in which the text is freely quoted. For an interesting case quoting the text see Robinson v. Kind (1896), 23 Nev. 330, 47 Pac. 1; Wilkins v. Lee (1894), 42 S. C. 31, 19 S. E. 1016.] 2 Jones v. Vantress, 23 Ind. 533; Mitchell v. O'Neale, 4 Nev. 504; Young v. Garlington, 31 S. C. 290. 3 Sturtevant v. Brewer, 9 Abb. 414; s. c. on app., 4 Bosw. 628. Attorney-General v. Mayor, etc. of N. Y., 3 Duer, 119; [National Savings Bank v. Cable (1900), 73 Conn. 568, 48 Atl. 428.] 5 Powell v. Finch, 5 Duer, 666. [For valuable discussion respecting the proper practice when an order has been made allowing additional persons to be made parties to a cause, see White v. Johnson (1895), 27 Ore. 282, 40 Pac. 511.] 6 [Northwestern Telephone Co. v. Railway Co. (1900), 9 N. D. 339, 83 N. W. 215. See Bauer v. Dewey (1901), 166 N. Y. 402, 60 N. E. 30, in which it is said the court has no authority under section 452 of the Code of Civil Procedure to compel against the indorsers of a note, the plaintiff will not be compelled to bring in the maker as a co-defendant.1 Nor is a new party to be ordered in merely for the purpose of settling matters between him and the defendant in which the plaintiff has no interest.2 The statute will not permit the plaintiff to add a new defendant without whose presence he could have no recovery since he would have no cause of action. Such a proceeding would in effect he the commencing a new action, and the statutory provision assumes that in the pending action a right to obtain a recovery is set up as against the original defendants. The plaintiff cannot be allowed, under the color of bringing in additional parties, to commence a new action when he would have failed entirely in the former one because he had not set up a good cause of action. 3 § 318. * 421. Examples and Illustrations. Pleadings. Rule in Indiana in Reference to Assignors. I add a few examples of cases where parties have been brought in; they are designed merely as illustrations. Additional parties have been ordered in, in an action for the specific performance of a contract executed by three when two only were at first made defendants; in an action for an accounting between two of a larger number of tenants in common of a mine, the complete adjustment of the account requiring that all the others should be added; 5 in a similar action for an accounting between partners in a mining venture, and for a winding up of the concern; in an action upon a promissory note given for the purchase price of land in which the vendor and holder of the note sought to enforce his lien, the heirs of the deceased vendee, to whom the land had descended, were made the plaintiff in an action in which a money judgment only is sought and in which the title to no real, specific or tangible personal property is involved, to bring in as a defendant a third party on his own application.] 1 Sawyer v. Chambers, 11 Abb. Pr. 110. 2 Frear v. Bryan, 12 Ind. 343, 345. See Carr v. Collins, 27 Ind. 306; Fagan v. Barnes, 14 Fla. 53, 56, 58; Peck v. Ward, 3 Duer, 647; Fischer v. Holmes, 123 Ind. 525; Pollard v. Lathrop, 12 Colo. 171; White's Bk of Buffalo v. Farthing, 101 N. Y. 344, 348; Chapman v. Forbes, 123 N. Y. 532. It is said in this last case (p. 538) that the decisions of the New York courts have been quite uniform in holding that the section of the code (§ 452, C. C. P.) referred to parties in what, under the old practice, would have been suits in equity, and that it was never intended to make it incumbent upon a plaintiff in an action at law to sue any other than the parties he should choose; citing Webster v. Bond, 9 Hun, 437: People v. Albany & Vt. R. Co., 15 Hun, 126. 3 McMahon v. Allen, 18 How. Pr. 39; affirmed, 3 Abb. Pr. 89. 4 Powell v. Finch, 5 Duer, 666. See Johnston v. Neville. 68 N. C. 177. 5 Mitchell r. O'Neale, 4 Nev. 504. defendants; in proceedings in aid of an execution the judgment debtor is a necessary party, and will be brought in.2 Under the requirements of the Indiana code in reference to assignors of things in action when transferred without indorsement, if the assignor dies, the assignee must make his personal representative a defendant in the action, or must show that there is none.3 After new parties have been brought in, the pleadings must be made to show that they are proper. When new defendants have been added on the application of the plaintiff, but the complaint, which stated no cause of action against them originally, had not been amended so as to supply this defect, it must be dismissed as against such defendants at the trial, and judgment thereon rendered in their favor.4 § 319. * 422. Author's Suggestions herein. I cannot pass from this subject without adding certain remarks which are suggested by it, and which concern the practical administration of justice. The clause of the codes under examination is expressed in the most general terms, containing no exception nor limitation. Whenever a necessary party has been omitted by the pleader, the court has the power in any stage of the cause to remedy the defect by ordering him to be brought in, and the case to stand over until that is done. It is almost universally the fact that an objection for the nonjoinder of parties is really technical, that is, it does not go to the entire merits of the controversy. A cause of action is generally set forth against those, or in favor of those, who are actually made parties; and the only error consists, not in stating the cause of action incorrectly, but in omitting some of the persons who are or rather may be beneficially or injuriously affected by it. If it be the true purpose and design of courts to administer justice between litigants, and to ascertain and enforce their rights and obligations, then it would seem to be the primary duty of the judges to decide every cause as far 1 Jones v. Vantress, 23 Ind. 533. 2 Wall v. Whisler, 14 Ind. 228. 3 St. John v. Hardwick, 11 Ind. 251. See Dart v. McQuilty, 6 Ind. 391; Bray v. Black, 57 Ind. 417. [In Kyes v. Wilcox (1900), 13 S. D. 228, 83 N. W. 93, the allegations of the answer disclosed that the presence of a third party was necessary to a complete determination of the controversy. The plaintiff's motion to require defendant to make his answer more definite and certain by alleging the name of such third party was sustained.] Smith v. Weage, 21 Wis. 440. See also Blakely v. Frazier, 20 S. C. 144. 5 [Mills v. Callahan (1900), 126 N. C. 756, 36 S. E. 164; Dobson v. Southern Ry. Co. (1901), 129 N. C. 289, 40 S. E. 42; Finch v. Gregg (1900), 126 N. C. 176, 35 S. E. 251.] |