Armstrong v. Pratt

2 Wis. 299 | Wis. | 1853

By the Court,

Smith, J.

The objections to the decree of the court below are — 1st, Because Chauncey Brown, Jr., (in whose favor a decree is made) is not a complainant, and is not a party defendant. No process being prayed against him, he could not be a defendant, save on application and leave of court. This objection is founded upon a mistake. On inspection of the record, it appears that the defendant, Chauncey Brown, Jr., was regularly made a party defendant to the bill, and process prayed against him, and he appeared and answered.

We are unable to perceive the force of the argument, that as the interest of Chauncey Brown, Jr., as ass%nee °f one °f the notes secured by the mortgage, is similar to that of the complainants, lie ought to J°ine(t as complainant. The rule in equity is, that all persons interested in the subject matter of litigation, must be made parties, so as to enable the court to do complete justice to all, and to make a final disposition of the whole matter. But it is not essential that all those having similar interests should join as complainants. Such a rule would be exceedingly inconvenient, if not impracticable. It is sufficient in equity, that all parties interested in the object of the suit should be before the court, either in the shape of plaintiffs or defendants. Wilkins vs. Fry, 1 Met. 262; Story's Equity Pl., sec. 74, a. The defendants Pratts complain, that by joining Chauncey Brown as a co-defendant, they have been deprived of interposing a defence to the note held by him. Not at all. They had ample opportunity to question the equity or legality of that demand, if they had any grounds for so doing, by filing a cross bill, requiring Chauncey Brown to answer to the defence they desired to interpose. That was the proper practice; and by omitting to avail themselves of it, the court below was right in presuming that no defence existed. It not unfre-quently happens, that persons of opposite interests in the subject matter are made co-defendants. In such case, a cross bill should be filed. And when the court cannot make a complete decree, on account of the opposite interests of the defendants, it will sometimes suspend the further hearing, and order such cross bill to be filed. But there was no occasion for the court below to do this. The indebtedness upon the note held by Chauncey Brown is admitted in the answer of Pratt, and Ms objection is merely technical, and formed no impediment to a final decree. Story's Eq. Pl. 313-316.

The only remaining point to be considered, is in regard to the set-off claimed by the defendant, and set forth in his answer. The insuperable objection to the allowance of the greater portion of the set-off is, that by the defendant’s own showing of dates, the greater part of it accrued subsequent to the death of the intestate, and such claims cannot be set off against demands included in the assets of the estate. The authorities cited by the counsel for the appellees are conclusive upon the subject.

Some of the items set out in the answer, however, accrued previous to the dea'th of the intestate, and were the proper subject of set-off, and should be allowed. They amount to about eleven dollars, or thereabouts; but whatever may be their amount, the appellees are willing now to allow it, and to remit so much of the decree. This being done, we see no rear son why the decree of the Circuit Court should not be affirmed.

On filing a remittitur for the amount of the items, which, by their date as set out in the answer, accrued prior to the death of the intestate, as the same appears by the bill and answers, the decree of the Circuit Court will be affirmed.