McMillan v. Spencer

Atkinson, J. The rulings announced in headnotes one to four, inclusive, do not require elaboration. The plaintiff suing as transferee of the note did not join the transferor '(the payee named in the note) as a party defendant. The defendant’s answer admitted execution of the note, and pleaded in avoidance thereof that the note was executed without consideration, that the plaintiff was not a bona fide holder for value, but that he had received the same under a collusive arrangement with the transferor to protect the latter as an innocent holder against the defense of the maker. It was not certain that the defense would be sustained as against the plaintiff, even conceding that the note was without consideration; consequently the defendant amended his answer 80> as to set up a claim for a judgment over against the transferor if the defendant should be held liable to the plaintiff, and to that end prayed that the transferor be made a party defendant. It is upon the order allowing this amendment that the bill of exceptions assigns error. The act approved October 16, 1885 (Acts 1884-5, p. 36), as now'embodied in the Civil Code, provides in part: “A defendant to any suit or claim in the superior court, whether such suit be for legal or equitable relief, may claim legal or equitable relief, or both, by framing proper pleadings for that purpose, and sustaining them by sufficient evidence.” Civil Code (1910), § 5410. Also, that-“Any defendant may also, if it is necessary to obtain complete relief, make necessary parties.” § 5411. The uniform procedure act approved October 34, 1887, provides in part: “The superior courts of this State, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require.” Civil Code (1910), § 5406. Those laws made radical changes in the law relating to procedure; and there can be no doubt, from application of the plain language of these statutes, that the defendant had the right to set up the matters urged and relied on in his [663] plea, and also to have the transferor made a party for the purpose of molding an appropriate decree against him as the facts might justify. It is urged that the amendment should not have been allowed, as the plaintiff should not be delayed on account of any issue between the defendant and the transferor. If that would make a difference, the plaintiff in this case is not complaining, and it would not afford the transferor any ground of complaint. The next question relates to the manner of bringing in a new party defendant against his volition, where affirmative relief is sought against him. The act of 1895 (Acts 1895, p., 47) is applicable. It was thereby provided.: “Where for any cause it becomes necessary or proper to make parties, the judge shall cause a rule to be prepared, signed by him, either in term time or vacation, calling on the person to show cause why he should not be made a party, the answer to which rule may be heard in term or vacation.” Civil Code (1910), § 5601. The act also provided: “In all eases, except those in which representatives of deceased parties are made, the new party shall be entitled to the same time within which to prepare for trial as if he had been one of the original parties to the cause; but in all cases now or hereafter pending in the courts of this State, any original or new party may consent to the trial at the first term, provided the case is ready for trial.” § 5602. The provision first above quoted authorizes the judge to make the rule to show cause returnable in term or vacation. No time is prescribed at which the rule shall be returnable. That time is left to the discretion of the court. Upon return of the rule the judge can do no more than allow or refuse to allow the respondent to be made a party. The matter of time for preparation for trial is governed by the provisions of the act quoted in the second instance, that is to say the provisions of the Civil Code (1910), § 5602. Under that law he should not be ruled to trial instanter. He would “be entitled to the same time within which to prepare for trial as if he had been one of the original parties to the cause.” It thus appears that the two sections of the statute constitute separate parts of -the legislative provision, the one relating to the mode of making a new party, and the other the time which shall be afforded him for preparing his defense. The judge had express statutory authority for making the transferor a party defendant in the manner which was pursued. [664] The order making him a party did not deprive him of time in which to prepare for trial. According to his statement to the judge he did not desire time. Judgment affirmed. All the Justices concur.