76 F. 131 | U.S. Circuit Court for the District of South Carolina | 1896
This case comes up now under these circumstances: There was, — perhaps still is, — in the county of Spartanburg, in the state of South Carolina, an unincorporated body or association known as the “Farmers’ Alliance.” One Zimmerman had opened a store or shop in that county for the purpose of selling merchandise of various kinds. His business was unprofitable, and he incurred many debts, among others to the plaintiffs in this suit. In order to obtain satisfaction of their demand, the plaintiffs brought their action against the defendants, who were alleged to have been present at a meeting which determined to appoint Zim
“Sec. 157. Where tlie action is against two or more defendants, and the summons is served on one or more of them, hut not on all of them, the plaintiff may proceed as follows: (1) If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property.of the defendants served, and, if they are subject to arrest, against the perspns of the defendants served.”
The terms of tiffs section sire not imperative, — “he may proceed against the defendant served, unless the court otherwise direct.” In other words, the matter is within the discretion of the court. The general rule of all pleading is that all persons interested in the controversy should be made parties thereto, so that all -rights, if possible, should be adjudicated in one proceeding. “Interest re-ipublicEe ut sit finis litium.” This is not always possible. There may be joint contractors, liable on the same contract. Some of these cannot be served, being without the jurisdiction of the court. If the plaintiff could not proceed because of this inability to serve them, he would be denied all remedy; for, if he instituted suit in the jurisdiction to which these absent persons were responsible, he would encounter a similar objection because of the absence of those who reside within the jurisdiction in which suit first began. To meet this, provision has been made in many of the states, and by congress, permitting suits against some one or more of joint contractors without including the others. The section above quoted is an instance of this, and the validity of this legislation has been declared by the supreme court of the United States. Hanley v. Donoghue, 116 U. S. 3, 6 Sup. Ct. 242. This provision having been made to meet the evil, it would seem that it should only be used when the evil sought to be remedied exists; that is to say, when it is impracticable to serve or bring within the jurisdiction the other
“Her. 737. When a part of several defendants cannot toe served. When ‘there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not. inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement cr objection t.o the suit.”
Commenting upon this act, the court, in Inbusch v. Farwell, 1 Black, 571. says: “Jurisdiction in the federal courts is not defeated by tlie suggestion that other parties are jointly liable with the defendants, provided it appears that such other parties are out of the jurisdiction of the court;” quoting this act.
The present action is based upon tbe liability of the defendants for the acts of Zimmerman, who is charged to be the agent of the association of which they were members, constituted such agent at a meeting at which they were present. The pleadings have developed (lie fact that at the same meeting there were many other persons, 114 in number, and that these defendants constituted a very small minority. If these defendants are responsible, they share this responsibility with all the others. They are entitled to have these others with them in the determination of the controversy, if if be possible, to do so; otherwise they may be made liable, and, when they seek contribution, must go on, and prove every fact which plaintiffs now seek to prove, and which these defendants deny. Now, all these other persons are not only within reach of process, hut they are named in the complaint, and process is asked against them. The plaintiffs are asking, notwithstanding all these facts, that they be allowed to halt in the natural progress of the suit, and to treat it as if it w'ere against these eight defendants only. It is a¡ case which calls for the exercise of discretion given to the court by section 157, and this request should he refused.
There is another consideration. The act of congress above quoted makes provision for a suit against some joint contractors without joining others. It is a jurisdictional act, and gives jurisdiction when the other contractors are neither inhabitants of nor are found within the district in which the suit is brought. Even were it to be assumed that the section of the Code; of South Carolina, has not the elasticity given to it, but chat it makes a hard and fast rule, it would seem that this court is not bound to follow ii. Congress has legislated upon a similar subject, and has put its limitation on the rule. According to the position of the plaintiffs’ they are entitled to go on, and obtain judgment, if they can, against the 8 defendants first named in the complaint, notwithstanding the fact that their amended complaint contains the name's of 114 co-contractors, who are admitted to he within reach of the process of the court. They rely on section 914 of the Revised Statutes of the United States, which adopts
The plaintiffs will perfect the service of their case.