Great Western Compound Co. v. Ætna Insurance

Lyon, J. There is nothing in the complaint to show that -the defendant Foote is a necessary or proper party defendant to the action; and on his demurrer, probably on his motion, possibly on the motion of any other party, he would be dropped from the case. The complaint alleges that he has no interest in the insured property; and the mere fact that he claims an interest in the controversy (no relief being demanded against him) is not sufficient to make him a proper party to the action. Put the demurrer of the appellant does not reach him, because his presence in the case is not a defect of parties, within sec. 5, ch. 125, E. S. See Willard v. Reas, 26 Wis., [376] 540; Marsh v. The Board of Supervisors of Waupaca County, 38 id., 250. Manifestly there is no improper joinder of canses of action in tbe complaint; and if a cause of action is stated therein in favor of the plaintiff and against the appellant, the demurrer is not well taken. We think the complaint states such a cause of action. The defendant Foote would have been entitled to a portion of the proceeds of the policy equal to his mortgage interest in the insured building, had he continued to hold that interest, and in such case would have been a proper coplaintiff with the insured in an action on the policy, or a proper defendant in case he refused to be a plaintiff. Ennis v. Ins. Co., 3 Bosw., 516; R. S., ch. 122, sec. 20, as amended by sec. 2, ch. 91, Laws of 1859. But if his interest in the property had ceased when the action was commenced, he was not a proper party either as plaintiff or defendant, and it is substantially alleged in the complaint that his interest therein had then terminated. The complaint does not state the manner in which the interest of Foote was terminated. It may have been by payment of the mortgage debt, in which case the insured is the only proper plaintiff in the action on the policy; or it may have been by assignment of such interest by Foote to some-third person, in which case the insured and such third person would be the proper plaintiffs. May on Insurance, § 449-But in the latter case, although there would be a defect of parties plaintiff, such defect does not appear on the face of the complaint, and can only be reached by answer. In any view we have been able to take of the case, we think the demurrer was properly overruled. By the Cou/rt. — Order affirmed.