11 Paige Ch. 321 | New York Court of Chancery | 1844
The bill in this case was not properly framed to obtain the relief sought by the complainant. Simmons, who had a joint and common interest with him, in the claim to have Allen’s judgment set aside, cancelled and annulled, if the allegations in the bill were true, should have been made a complainant also; unless some sufficient excuse was stated, in the bill, for omitting to make him a complainant. But even if
Having arrived at the conclusion that the complainant was not entitled to relief on this bill, and that if Simmons had been a party his testimony could not have been received, to prevent a decision in favor of Allen, which would have been a bar to any future suit instituted by Simmons to set aside this judgment, it is unnecessary to examine the other questions in this case. The decree appealed from must be reversed, and the complainant’s bill must be dismissed with costs; but without prejudice to the complainant’s rights in any future litigation. And neither party is to recover costs against the other upon this appeal.