Penfield v. Wheeler

Berry, J. This action was commenced against James Wheeler and W. H. H. Wheeler, alleged to be partners under the firm name of Wheeler Bros. These two defendants answered, alleging, among other things, that the partnership was composed of themselves and Balph J. Wheeler. Thereupon the plaintiff, upon an ex parte application to the district court, obtained an order that Balph be made a party defendant in the action, and that he appear and answer the complaint within twenty days after the service of such order upon him. Upon the application of Balph, specially appearing for that purpose, the plaintiff was ordered to show cause why the order making Balph a party, etc., should not be vacated. Upon a hearing, the order to show cause was discharged. As the complaint stands, it neither states nor assumes to state any cause of action or ground of relief against Balph. There is, therefore, no reason why he should be made a party to the action, or be required to appear therein or answer the complaint. If the plaintiff desired to bring him in, he should first have amended his complaint and summons, either before obtaining the order, or under its direction. [359] The order discharging the order to show cause is reversed, and the order making said Ralph a party, and requiring him to appear and answer, is vacated.