199 Ky. 824 | Ky. Ct. App. | 1923
Opinion of tiie Court by
Reversing.
On the application of J. W. Strother and others, citizens and taxpayers of 'Carter county, the circuit court of that county granted a mandamus directing the members of the fiscal court to advertise for bids and to elect a county treasurer in the manner provided by section 929, Kentucky Statutes. The defendants appeal.
Section 28, Civil Code, is as follows:
. “The court may determine any controversy between parties before it, if it can do so without prejudice to others ,• if it cannot do so, it must require such other persons to be made parties, or must dismiss the action without prejudice.”
In construing this section it has been held that, although a failure to object for defect of parties is a waiver so far as the defendants are concerned, yet, where the cause is such that the court cannot render a decision between the parties without injuriously affecting the rights of others who are not before the court, it ought not to proceed until such other persons are made parties to the action. Johnson v. Chandler, 15 B. Mon. 584.
Judgment reversed and cause remanded for proceedings consistent with this opinion.