14 Blatchf. 371 | U.S. Circuit Court for the District of Vermont | 1878
This cause has been heard on the several demurrer of defendant Strong, and joint demurrer of defendants Prime, Meaeham and Luce, to the cross-bill. The causes of demurrer assigned are the same in each. They are, in substance, that this court has not jurisdiction, because the court of chancery of the state had acquired prior jurisdiction, on a biU brought by the orator in the cross-biU, there, for the same relief; that some of the relief prayed is not cognizable in equity; that some of the subjects of the cross-bUl are not the same as those of the original bill; and that Strong and another, made parties to the cross-biU, were not parties to the original bill. Both are demurrers to the whole bill.
So far as the defendants Prime, Meacham and Luce are concerned, it would be sufficient to say, as to the other causes of demurrer, that, because other parties are improperly called upon to answer the cross-bill in this form, is no good reason why they, who are properly called upon to answer it, should not do so. But, if the others are properly called upon to answer it,- a fortiori, they are, and should answer it.
The question hereupon is, merely, whether the cross-bill should be answered at all or not by these other parties. That depends, of course, upon whether the subjects of it are so presented here by it, that they are properly called upon to answer it, in the form in which they are presented. The original bill sets forth, in substance, that the orators in that have a patent that the orator in the cross-bill is infringing, and prays appropriate relief. The cross-bill sets forth, that the defendant Strong had the record title to the patent, and the orator the equitable title to it, and that the orators in the original bill acquired Strong’s title, with notice of the outstanding equity, and were endeavoring to assert it against the equitable title, and prays restraint and a conveyance. It is, unquestionably, the proper office of a cross-bill to afford relief in such a case, if the case is made out Story, Eq. Pl. § 391; Calverley v. Williams, 1 Ves. Jr. 210. A cross-bill is like an original bill, except that it must rest on what is necessary to the defence of an - original bill. In an original bill, brought by the orator in the cross-bill, for the same relief, there could be no fair question but that these new parties, of whom Strong is one, ‘would be proper parties. In this original bill, as it is framed, these do not appear to be necessary parties, but, when the facts set up in the cross-bill appear, they become so. Following the ordinary rule, when the orator in the cross-bill resorts to it for de-fence and relief, and makes it appear that they are not only proper but necessary parties to the litigation, that orator not only might, but ought, to make them parties. If there were no authorities and was no practice on the subject, on principle, that would seem to be the proper course. That the practice in this state, which professes to follow the English-chancery practice, the same that is followed in this court, would warrant making him a party, is well known, and ■ appears in the state reports. Blodgett v. Hobart, 18 Vt. 414. It does not appear expressly, from such English reports or text-' books as have been examined, what the actual practice in such cases .there has been. In this country, in Curd v. Lewis, 1 Dana, 351, a decree was reversed, for the reason that an assignor of the subject of litigation in an original and cross-bill was not a party to either, and should have been made a party to the cross-bill, and that he might be made such a party. Wickliffe v. Clay, Id. 585, was heard by consent only, without making a party that by the cross-bill appeared necessary, a new party by the cross-bill. In Sharp v. Pike, 5 B. Mon. 155, a new party was added by cross-bill, against his-own express objection. In Walker v. Brun-gard, 13 Smedes & M. 723, new parties were added, and new matters brought in, by cross-bill, and heard without objection. In disposing of the case, the chancellor, delivering the opinion of the court, said, that, if they had been objected to, the new matters would all have been kept out, without saying that the new parties would have been. In Coster v. Bank of Georgia, 24 Ala. 37, it was expressly held that new parties should be* added by cross-bill, when so interested in the litigation involved by it, as to be proper parties to it.
Opposed to all this, there is the remark of Mr. Justice Curtis, in Shields v. Barrow, 17 How. [58 U. S.] 130, and the reasons given by him in support of it, to the effect, that new parties cannot, in any case, properly be added by cross-bill, without citing any authority for it, and books and cases that nave followed that remark without citing any other authority. That precise question was not involved in that case, but the mere dictum of such a judge of such a court would ordinarily be followed, especially by lower courts. An examination of his reasoning shows, that, he made the suggestion without much examination, probably, and his reasoning does not cover the whole ground as to all classes
The result is, that this cross-bill should be answered by all those made defendants to it. The demurrers are overruled, and it is thereupon ordered that the defendants to the cross-bill answer over.