Stevens v. Brooks

DixoN, C. J. Assuming that tbe grantees of Noonan became assignees of tbe mortgage in proportion to tbe value of tbe land attempted to be conveyed to each, and that tbe actions by Earwell, Boby and others, against Noonan, Boys and others, were properly commenced as well in behalf of all other persons interested and not named as of tbe plaintiffs named, still I think that tbe complaint states no cause of action. I'think tbe plaintiff altogether mistakes tbe true relation of tbe persons not named to tbe actions which were thus commenced in their behalf. He seems to suppose that they were real parties to tbe action, and bound to bear their proportion of tbe expenses of tbe litigation, whether they assented to tbe proceedings and came in under tbe judgment, or not. In other words, be seems to think it competent for tbe plaintiffs named, who commenced and carried on tbe litigation without tbe knowledge or consent of [704] those not named, to compel tbe latter, against their will, to accept the benefit of the proceedings, and to share the expenses. This is an entire mistake. The persons not named in such eases are not parties to the suit, unless they afterwards elect to come in and claim as such, and bear their proportion of the expenses. It is optional with them whether they will become parties or not; and until they so elect, they are, in the language of the books, “ in a sense, deemed to be before the court.” Story’s Eq. Pl. (Redfield’s edition), § 99; Adair v. The New River Company, 11 Ves., 444. They are so far before the court that if they neglect, after a reasonable notice to them for that purpose, to come in under the judgment and establish their claims, the court will protect the defendants and parties named from any further litigation in respect to the same fund or subject matter, especially so far as such litigation may .tend to disturb the rights of the parties as fixed by the judgment. The whole doctrine of the court of equity upon the subject is so fully and clearly expounded by Chancellor Walworth in Hallett v. Hallett, 2 Paige, 18, and by Lord Eldon in Good v. Blewit, 19 Ves., 336, that a reference to other authorities is deemed unnecessary. The practice in actions of that kind, of per.mitting,' and, in most cases, of requiring the plaintiff to sue not only in his own behalf but also in behalf of all others interested, was adopted so as to conform as nearly as possible to the general rule in courts of equity as to parties, which is, that all persons materially interested in the subject-matter ought to be made parties to the suit, either as plaintiffs or as defendants, however numerous they may be, in-order that complete justice may be done and multiplicity of suits prevented; but as that rule was sometimes found incapable of application, either because the parties were so numerous as to render it impracticable to bring them all by name before the court, or were unknown, or without the [705] jurisdiction of tbe court, exceptions became necessary tbat tbe rule, established for tbe convenient administration of justice, might not destroy tbe very purpose for which it was established. “ The exceptions, therefore,” says Judge Stob,y, supra, § 96, “ turn upon the same principle upon which the rule is founded. They are resolvable into this, either that the court must wholly deny the plaintiff the equitable relief'to which he is entitled, or that the relief must he granted without making other persons parties. The latter is deemed the least evil, whenever the court can proceed to do justice between the parties before it, without disturbing the rights or injuring the interests of the absent parties, who are equally entitled to protection. And even in the cases in which the courts will thus administer relief, so solicitous is it to attain the purposes of substantial justice, that it will generally require the bill to be filed, not only in behalf of the plaintiff, but also in behalf of all other persons interested, toho are not directly made parties (although in ásense they are thus made so), so that they may come in under the decree, and take the benefit of it, or show it to be erroneous, or entitle themselves to a rehearing.” This is the extent of the exceptions to the general rule; so that, instead of being a mode of making the persons not named parties to the suit, unless they come in under the judgment, or before judgment, as they may do, and take the benefit of it, it is in reality a mode of dispensing with the presence of such persons before the court, and of rendering a final judgment without them; and unless they do come in and take the benefits, in which case they become parties and are chargeable like the others, I know of no principle or authority upon which they can be charged with any part of the expenses of. the litigation. I think, therefore, that the complaint is defective in not alleging that the defendant Brooks did come in, and did accept the benefits [706] of the proceedings in the two actions named in tbe complaint. "Without some such facts, which of course must be averred, there was no consideration for the promise alleged to have been made by him to the plaintiff. Besides, the condition of the promise which was made, has never been fulfilled. That condition was, “ that in case he should be protected in his interests correspondingly with the other plaintiffs and parties interested, by the said action and measures begun and taken, he would pay his proportionate share of the outlays and expenses necessary thereto.” Whether the defendant should be protected in his interests or not, depended on whether he should come in and become a party to the action, which was a matter entirely optional with himself. Having refused to come in, he has received no protection, but is debarred from all rights under the judgment; and the condition upon which he was to pay has failed. I think, therefore, that the demurrer to the complaint should have been sustained, and that the order of the court below must be reversed. By the Court. — Order reversed. The plaintiff moved for a rehearing.