페이지 이미지
PDF
ePub

injunction against its infringement with damages or an account of profits.50 It has been held: that all the devisees, who are joint tenants of land, are indispensable parties to a suit to foreclose a mortgage upon the same, given by an executor under a power in the will.51 It was held that in a suit to compel the execution and foreclosure of a mortgage, prior incumbrancers and others claiming an interest in the mortgaged property were necessary parties, when it did not appear that their joinder was impossible or would oust the jurisdiction.52

To a bill to enforce specific performance of a contract, providing for the sale of land the title to which was in one party, and its distribution between both parties to the contract; when filed, after the death of each by the personal representatives of the one as complainants against the heirs-at-law of the other as defendants: the executors of the defendants' ancestor are necessary if not indispensable parties defendant, and the heirs-at-law of the complainant's decedent are not.53

All a decedent's heirs-at-law are indispensable parties to a bill by one of them to set aside a sale of the ancestor's property under a decree; and to such a bill the party to the former suit at whose instance the sale was made is also an indispensable party.54 All a woman's heirs have been held necessary parties to a bill to set aside a marriage settlement.55 To a bill by a stockholder to set aside the foreclosure of a railroad mortgage, the trustees of the mortgage foreclosed, the mortgagor, the purchaser, and enough of such of the stockholders and bondholders as consented. to the foreclosure to represent the remainder, are indispensable parties.5 So, it has been said, are the trustees of a mortgage by the purchaser, and a corporation holding all the stock of the purchaser.57

56

50 Waterman v. Mackenzie, 138 U. S. 252, 261, 34 L. ed. 923, 927; quoted supra, § 112.

51 Detweiler v. Holderbaum, 42 52 Metropolitan Bank v. St. Louis Dispatch Co., 149 U. S. 436, 450, 37 L. ed. 799, 804.

53 Seymour v. Freer, 8 Wall. 202, 218, 19 L. ed. 311. See Prout v. Roby, 15 Wall. 471, 21 L. ed. 58.

54 Hoe v. Wilson, 9 Wall. 501, 19 L. ed. 762; Harwood v. Railroad Co., 17 Wall. 78, 21 L. ed. 558. But see Alger v. Anderson, 78 Fed. 729. 55 McDonnell v. Eaton, 18 Fed. 710.

56 Ribon V. Railroad Cos., 16 Wall. 446, 21 L. ed. 367.

57 Wenger v. Chicago & E. R. Co., C. C. A., 114 Fed. 34.

60

A corporation or its receiver,58 must be a party to a suit to enforce a right against a third person, which the corporation refuses to assert,59 or to prevent the waste of corporate assets. If a receiver has been appointed he is an indispensable party to such a suit, even although the State court which appointed him. refuses to authorize the suit against him.61 Where a corporation had been dissolved and its receiver discharged; it was held: that neither of them was an indispensable party to a suit by its creditors against a former director and treasurer of the company, to enforce his promise to pay all its debts in case he should be allowed to buy its property at a judicial sale.62 A county is an indispensable party to a suit to set aside its bonds or warrants as fraudulently issued.68

The trustees and treasurer of an Iowa township are necessary parties to a suit by a taxpayer to prevent payment to the holder of bonds claimed to be invalid.64 It has been said that to a bill by the receiver of a water company to establish his right to fix the water rates, all consumers of the water must be made parties.65 To a bill for an injunction against interference by riparian owners with complainant's right to divert the waters for irrigation, all persons who claim any right to use the waters are indispensable parties.66

It seems that the principal debtor, or his assignee in bank

58 Porter v. Sabin, 149 U. S. 473, 37 L. ed. 815.

59 Davenport v. Dows, 18 Wall. 626, 21 L. ed. 938; New Jersey Central R. Co. v. Mills, 113 U. S. 249, 256, 28 L. ed. 949, 951; Bell v. Donohue, 17 Fed. 710; Swan L. & C. Co. v. Frank, 148 U. S. 603, 37 L. ed. 577; Kelly v. Mississippi River Coaling Co., 175 Fed. 482; Snead v. Scheble, C. C. A., 175 Fed. 570; Lawrence v. Southern Pac. Co., 180 Fed. 822.

60 Putnam v. Rich, 56 Fed. 416. 61 Porter v. Sabin, 149 U. S. 473. 62 Lilienthal v. Betz, 185 N. Y. 153, 7 Ann. Cas. 41.

63 Continental Trust Co. v. Butts County, 242 Fed. 539,

64 Sully v. Drennan, 113 U. S. 287, 28 L. ed. 1007. Compare Harter v. Kernochan, 103 U. S. 562, 26 L. ed. 411. In a suit by citizens to restrain the erection of a schoolhouse on land dedicated for a public park, it was held error to refuse to allow an amendment to the bill making the original donors of the land parties complainant. Rowzee v. Pierce, 75 Miss. 846; s. c., 23 S. R. 307; s. c., 40 L.R.A. 402, 65 Am. St. Rep. 625.

65 Ward v. San Diego L. & W. Co., 79 Fed. 656, 667, s. c. in C. C. A., 94 Fed. 849. But see Clyde v. Richmond & D. R. Co., 57 Fed. 436. 66 Washington State Sugar Co. v. Sheppard, 186 Fed. 233.

ruptcy or insolvency, is a necessary party to a suit against a surety."

Unless the bill is expressly filed on their behalf, all creditors of a corporation are indispensable parties to a suit by one of them to collect unpaid stock subscription.68.

To a suit by a creditor to enforce a lien upon property through a trust-deed made for the benefit of a surety, both the trustee and his beneficiary are indispensable parties, although the property is in the possession of neither of them; but if filed in a double aspect, either for the complainant's individual benefit, or on behalf of the other creditors of the principal debtor, to set aside a subsequent sale, relief may be had without having the surety or his trustee before the court.69 So, a debtor, or if a bankrupt or insolvent, his assignee, is a necessary party to a creditor's suit to enforce a lien 70 or to levy 71 upon property in which the debtor has an interest, or to collect a debt due the debtor. A corporation must be joined as a defendant: to a bill for a receiver; 78 to a bill filed by a creditor to apply to the payment of its indebtedness money due it from its stockholders,74 or to enforce the individual liability of its stockholders, 75 To a bill to compel a transfer upon its books of stock

[merged small][ocr errors]

68 George W. Signor Tie Co. v. Monett & S. W. Const. Co., 198 Fed. 412.

69 Me Rea v. Branch Bank of Alabama, 19 How. 376, 15 L. ed. 688. 70 Russell v. Clark, 7 Cranch, 69, 3 L. ed. 271; Robertson v. Carson, 19 Wall. 94, 22 L. ed. 178. But see Heriot v. Davis, 2 W. & M. 229. It was held that in a suit against a bank for money deposited by complainant's agent, and applied by the bank to debts due from the agent, the latter was a proper and necessary party; but on a decree for complainant, without there appearing any right or liability for or against

72

the agent, it is proper then to dismiss him. Union Stock Yards Nat. Bank v. Moore, C. C. A., 79 Fed. 705.

71 Wilson v. City Bank, 3 Sumner, 422.

72 U. S. v. Howland, 4 Wheat. 108, 4 L. ed. 526.

73 Elkhart Nat. Bank v. Northwestern G. L. Co., 84 Fed. 76.

74 Bingham v. Luddington, 12 Blatchf. C. C. 237; First Nat. Bank v. Smith, 6 Fed. 215; Dormitzer v. Illinois & St. L. Bridge Co., 6 Fed. 217; Walsh v. Memphis, C. & N. W. R. Co., 6 Fed. 797; Continental Adjustment Co. v. Cook, 152 Fed. 652; Clinton Min. & Mineral Co. v. Cochran, C. C. A., 247 Fed. 449. 75 Elkhart Nat. Bank v. Northwestern E. L. Co., 84 Fed. 76.

which stands in the name of another than the complainant.76 To a bill by the stockholder of another company which is in control of a majority of its stock to enjoin such other company from voting upon such stock and from electing upon its board of directors anyone who is a director or officer of the defendant company.77 To a bill to enjoin its officers from an infringement or another tort committed in the transaction of its business.78 So must be an unincorporated association to a bill to foreclose a mortgage upon a certificate of membership which cannot be transferred without its consent.79

To a bill for the dissolution of a corporation and an accounting filed for the benefit of a single stockholder, not on behalf of the rest, the other stockholders or their representatives must be made defendants.80 A stockholder is an indispensable party to a bill to enjoin his corporation from permitting his stock to be voted,81 although the owner is a corporation, with the same directors as those of the company the stock in which he

76 Kendig v. Dean, 97 U. S. 423, 24 L. ed. 1061; St. Louis & S. F. Ry. Co. v. Wilson, 114 U. S. 60, 29 L. ed. 66; Rogers v. Nortwick, 45 Fed. 513; Patterson v. Farmington St. Ry. Co., 111 Fed. 262. See Wilson v. Oswego Township, 151 U. S. 56, 38 L. ed. 70; and cases cited; supra, §§ 40-43; infra, § 541. But it has been said that in a suit by the holder of a certificate of stock, duly endorsed, to compel a transfer of the same by the corporation, the owner of the legal title is not an indispensable party, although he has disputed the validity of the transfer. O'Neil v. Wolcott Mining Co., C. C. A., 174 Fed. 527, 536; see Gould v. Head, 41 Fed. 240, 248; Williamson v. Krohn, 66 Fed. 655.

77 Hyams v. Old Dominion Co., 204 Fed. 681, aff'd C. C. A. 209 Fed. 808.

78 Wm. A. Rogers Co. v. Nichols, C. C. A., 224 Fed. 415.

79 Metropolitan Nat. Bank v. St. Louis Dispatch Co., 149 U. S. 436, 37 L. ed. 799.

80 Watson v. U. S. Sugar Refin ery Co., 68 Fed 769. Where a corporation had been required to deposit moneys with the treasurer of the Commonwealth to indemnify those who should sustain damage by the construction of a canal, and the fund was insufficient to pay all claims, it was held that a bill to have certain damages paid therefrom should make parties to the suit all interested in the funds. Cowell v. Cape Cod Ship Canal Co., 41 N. E. R. 290, 164 Mass. 235. Similar is Childs v. N. B. Carstein Co., 76 Fed. 86. But see Bickford v. McComb, 88 Fed. 428.

81 Talbot J. Taylor & Co. V. Southern Pac. Ry. Co., 122 Fed. 147. See Minnesota v. Northern Securities Co., 184 U. S. 199, 46 L. ed. 499,

owns.82 A stockholder is an indispensable party to a suit against a collector of Internal Revenue and others to have income taxes declared an equitable lien upon dividends which a lessee of his corporation has covenanted to pay directly to such stockholders.83

To a bill by alleged heirs, to set aside the probate of a will, persons who appeared in the probate court, claiming adversely to the plaintiffs that they are the true heirs at law; are indispensable parties.84 In a suit to compel the execution and foreclosure of a mortgage, it was held; that prior incumbrancers and others, claiming an interest in the mortgaged property, were necessary parties, when it did not appear that their joinder was impossible or would oust the jurisdiction.85 In one case, where a bill was filed to stay proceedings in ejectment, the court required the nominal defendant at law to be joined as a coplaintiff with the real person interested, although it did not appear what citizenship he had.86

§ 121. When numerous interests have been created for the purpose of preventing the plaintiff from obtaining equitable relief. When numerous interests had been created for the purpose of preventing a person from obtaining equitable relief, the English courts allowed the persons to whom these interests were thus conveyed to be omitted from the bill, if the original owner of the property thus divided were made a defendant.1 The rule and the reasons for it are thus stated by Calvert in his valuable work on Parties: "If a party has divided an interest amongst a number of persons for this purpose, the court, in order that the contrivance may be frustrated, and the equitable relief may be obtained, allows the suit to proceed in their absence. Such a division is in reality a fraud, an attempt to defeat.

82 Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co., 250 Fed. 160, 171. 83 Rensselaer & Saratoga R. Co. v. Irwin, 252 Fed. 921.

84 Carran v. O'Calligan, C. C. A., 125 Fed. 657.

85 Caldwell v. Taggart, 4 Peters, 190, 7 L. ed. 828.

86 Hyde v. Folger, 4 McLean, 255. In connection with this topic, the section 541 on Separable Controver

sies in the chapter XXXII on Re-
moval of Causes, infra, should be
consulted.
§ 121. 1 Calvert on Parties (2d
ed.), Book I, ch. iv, p. 61; Yates v.
Hambly, 2 Atk. 237. See, also,
Union Bank of Louisiana v. Staf-
ford, 12 How. 327, 13 L. ed. 1008;
New Orleans Canal & Banking Co. v.
Stafford, 12 How. 343, 13 L. ed.
1015.

« 이전계속 »