13 Tex. 342 | Tex. | 1855
The only ground on which, it is perceived, the defendant Morgan could take exception to the defective citation or service by publication on unknown parties, is that it occasioned unnecessary costs. On this ground he perhaps was properly heard to make the objection ; and as the publication could not have the effect to make parties, persons not named, the citation was properly quashed at the costs of the plaintiffs. But the quashing of the citation or service did not authorize the dismissal of the petition. It appears to have been dismissed because the plaintiffs did not ask an alias citation. That was unnecessary unless there were parties named on whom service could be made ; and, as there were not, the suit was, indirectly, but virtually, dismissed for the want of proper parties. Was it rightly dismissed for this cause ? As a general rule all persons materially interested in the subject matter, or, as it is expressed by Mr. Calvert, all persons having an interest in the object of the suit, ought to be made parties. (Calvert on Parties, Ch. 1, Sec. 1, p. 11; Story’s Eq. Pl. Sec. 76, a.) But to this rule there are many exceptions, “All these exceptions (says Story) will be found to be gov- “ erned by one and the same principle, which is, that, as “the. object of the general rule is to accomplish the pur- “ poses of justice between all the parties in interest, and it is “ a rule founded, in some sort, upon public convenience and “policy, rather than upon positive principles of municipal or “ general jurisprudence, Courts of equity will not suffer it to “ be so applied as to defeat the very purposes of justice, if “ they can dispose of the merits of the case before them, with- “ out prejudice to the rights or interests of other persons, who
Reversed and remanded.
