Swenson v. Wells

BjgewiN, J. Considerable argument is made in this case-respecting the question as to whether or not the answer in abatement was sufficient and whether it was not waived by the answer in bar. We shall spend no time on this, point, [318] because we think it clear, under tbe provisions of sec. 2610, Stats. (1898), that the court should not have ordered the action abated, even conceding, for the purpose of the argument, that the answer in abatement was sufficient and the issue properly found in favor of the defendant. Sec. 2610 provides, in effect, that when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject matter as require them to be parties for their protection, the court shall order them to be brought in. We think the provisions of this statute made it the duty of the court, upon the determination of the issue in abatement •against the plaintiff, to stay proceedings in the action and order the necessary party plaintiff brought in, and not order the action abated. Sec. 2610, Stats. (1898) ; Shove v. Shove, 69 Wis. 425, 34 N. W. 392; Carney v. Gleissner, 62 Wis. 493, 497, 22 N. W. 735; Emerson v. Schwindt, 108 Wis. 167, 173, 84 N. W. 186; McDougald v. New Richmond R. M. Co. 125 Wis, 121, 103 N. W. 244. It may be well to observe, in passing, that ordinarily sole ■ownership in a plaintiff suing in replevin is not essential to the maintenance of the action, because he may recover, though not the sole owner, against a stranger who has neither title nor right of possession, if he has an interest and is entitled to possession. . Eor example, in certain cases a tenant in common may maintain an action in his own name to recover possession of personal property from a stranger, in the absence of special circumstances going to show the necessity of any other party plaintiff. But in the case before us we are of the opinion that the court below rightly regarded the case as a proper one requiring the presence of Walker as a party plaintiff, upon the allegations in the pleadings and agreement referred to in the answer in abatement. The'court is therefore of the opinion that the court below, was in error in order [319] ing tbe ease abated; therefore tbe judgment must be reversed. By the Court. — Tbe judgment of tbe court below is reversed, and the cause remanded for further proceedings! ac- ■ cording to law. Siebeceee, J., took no part.