Baker v. Hawkins

| Wis. | Jan 15, 1872

Dixon, C. J.

Whether the court below was correct or not in holding, as is said in the brief of counsel, that the wife of the mortgagor was a necessary party defendant, we think it to be perfectly clear that James D. Hawkins, who appears from the allegations of the complaint to be the owner of the equity of redemption, is such a party. And as to the other grounds of demurrer, or those not touching this point of defect of parties defendant, we are of opinion that none of them can be . sustained. And this leaves us only to consider the question of the sufficiency of the demurrer itself upon this one ground of defect of parties. The court below held it defective and insufficient in form and substance, and therefore overruled it with leave to the defendant to amend it or to answer the complaint within twenty days. That court held it to be defective in not pointing out or naming the persons not joined who were the necessary parties defendant. We are of the same opinion. The former practice in equity was well settled. Judge Story (Eq. PL, § 543) says: “A demurrer for want of necessary parties must show who are the proper parties, from the facts stated in the bill, not indeed by name, for that might be impossible, but in such a manner as to point .out to the plaintiff the objection to his bill, and to enable him ito amend by making proper parties.” See also § 238. And the same is the language of all the elementary writers upon the subject. Mitford’s Eq. PL, [*180, 181] ; 1 Daniell’s Ch. Pl. & Pr., 584, and note 2; Cooper Eq. PL, 187 ; Welford, do., 279 ; Edwards on Parties, 275.

In Dias v. Bouchaud, 10 Paige, 455, Chancellor Walwobth, declaring his intention to adhere to the rule as originally laid •down by Lord Redesdale, says, that “in a demurrer for want .of parties, the defendant must point out the necessary parties, either "by name, in reference to some statement of their names in the bill, or by their characters, as the heirs, devisees, personal representatives, assignees, creditors, etc., of some of the persons therein named or referred to.” And in a note to Story, § 543, supra, the form of a demurrer for want of necessary parties, as found in Yan Heythuysen’s Eq. Drafts, 519, is given as follows: “These defendants, by protestation, etc., do demur to the said bill, and for cause of demurrer show, that it appears by the said complainants’ own showing in the said bill, that J. S., therein named, is a necessary party to the said bill, inasmuch as it is therein stated, that the said testator did, in his lifetime, by certain conveyances made to the said J. S., in consideration of £-, convey to him by way of mortgage, certain estates in the said bill mentioned, for the purpose of paying the said testator’s said debts and legacies; but yet the said complainant hath not made the said J. S. a party to said bill. Wherefore,” etc. In the edition of the same work by Hughes, the form is given on page 629.

The code, in enacting that there may be a demurrer for defect of parties, has not abrogated, this ancient and salutary rule of chancery practice. There is nothing in the language of it to indicate such intention. And accordingly we find in New York, whence the code came to us, the courts still enforcing the rule. Yan Santvoord’s PL, 672, 714, and authorities cited. This is as might have been expected; and we have no doubt the decision of the circuit court was right, and should be affirmed. This is also in analogy with the former practice at law, where a plea in abatement was proper for a defect in parties defendant. The plea was required to give the plaintiff a better writ, and to point out who the parties were who ought to be joined, and to show that they were still living, unless that fact appears by the declaration. 1 Chit. PL, 46. The demurrer now, in proper cases, is a substitute for the plea in abatement in suits at law, and hence should in every action, whether legal or equitable, point out who the proper parties are, and in other respects comply with. ■ the substantial requisites of a plea or demurrer under the former practice.

By the Court. — Order affirmed.

Baker vs. Drury, et al.

Dixon, C. This is an appeal by other defendants in the action of Baker v. Hawkins just decided, who appeared by a different attorney and put in a demurrer in the same form and for the same causes as the defendant Havokins. The same order was made on their demurrer, from which they appeal, and of course the appeal presents the same questions and must be decided in the same way. The order must be affirmed.

By the Court — Order affirmed.