32 Minn. 548 | Minn. | 1884
This is an action to recover for professional services as attorney, rendered by plaintiff to defendants between February, 1881, and August, 1883, in a suit pending in the supreme court of the United States, on appeal from the United States circuit court for the district of Minnesota. The point raised is that the evidence shows that the contract of retainer, under which the services were rendered, was made with plaintiff while he was a member of the law firm of Davis, O’Brien & Wilson, and hence was, in law, a retainer of the firm, and therefore the cause of action proved was one in favor of that
Under the common-law system, in actions ex delicto, if a party who ought to join as plaintiff was omitted, the objection could only be taken by plea in abatement, and not as a ground of nonsuit on the plea of the general issue. In actions ex contractu, in case of defendants, if there was a non-joinder of a party jointly liable on the contract, the same rule obtained. But in case oí plaintiffs, the non-joinder of a co-contractor might be taken advantage of at the trial, under the general issue, as a variance between the contract pleaded and that proved. The good sense of this distinction, while admitted to exist, was often questioned; and it was sometimes suggested by the courts that it would have been more convenient that the parties should, after issue joined, proceed on the merits, than that the defendant should be allowed to nonsuit the plaintiff on the trial. See Wilson v. Wallace, 8 Serg. & R. 52; 1 Chit. Pl. 14, note x. The change made by the Code is, we think, in accordance with this suggestion. Under its jirovisions we can see no ground for any distinction in this regard between actions ex contractu and actions ex delicto, or between a defect of parties plaintiff and of parties defendant. We can find no suggestion of any such distinction in any of the practice reports. On
We are of opinion that in the present ease there was, at most, what, under the Code, must be deemed a defect of parties plaintiff, which, not appearing on the face of the complaint, could only be taken advantage of by answer setting it up as a defence, and, if not, would be waived, and could not afterwards be taken advantage of. See Scrantom v. Farmers’ & Mechanics’ Bank, 33 Barb. 527; Conklin v. Barton, 43 Barb. 435; Abbe v. Clark, 31 Barb. 238; Zabriskie v. Smith, 13 N. Y. 322; Merritt v. Walsh, 32 N. Y. 685. We have carefully examined all the authorities cited by appellant, and find, so far as they bear on this question, that they were either under the former system, or else the objection was properly raised by answer. See Slutts v. Chafee, 48 Wis. 617. It is contended, however, that the objection is sufficiently made by answer in this case. When carefully analyzed, and compared with the allegations of the complaint, it will be found that this answer amounts, practically, to nothing but a denial of the complaint, and was never intended and cannot be construed to set up the defence of a defect of parties. Such a defence must be set up distinctly, and must specifically show wherein the defect consists, and who should have been joined as a party.
Order affirmed.
Berry, J., being in attendance at the meeting of the State Canvassing Board, did-not hear the argument, and took no part in the decision of this case.