Hastings v. Belden, 55 Vt. 273

Hastings v. Belden

55 Vt. 273 | Vt. | 1882

The opinion of the court was delivered by

Taft, J.

The defendants, Hyde, Belden and Ide, have demurred to the bill, setting forth as causes: first, want of equity; second, that the orators can have full relief at law; third, that Woodbury is not a proper party defendant.

I. Under the first cause, the defendants can ore tenus, assign as error, any defect in substance. Cooper Eq. PL 118 ; and they claim that the attorneys, Belden and Ide, are not proper parties. We understand the rule to be that attorneys can only be made parties to a suit in equity in cases where they have so involved themselves in fraud, that a court of equity, although it can give no other, relief against them, will order them to pay the costs ; and that if an attorney is made a party, the bill must pray that he pay the costs, otherwise a demurrer will lie. 1 Dan. Ch. Pl. & Pr. 299 ; Story Eq. Pl. s. 232. There may be other cases where it would be proper to make them parties, as where they hold deeds, notes, or securities, claiming them adversely to the interests of their clients, and refuse to surrender them. There are no allegations in this bill that Belden and Ide are acting fraudu lently, or in any way save as the attorneys who brought the suit sought to be enjoined. A decree against Hyde will afford the orators complete relief. Belden and Ide therefore are not proper parties to the bill, and should be dismissed.

II. The defendants insist that it appears by the bill that the orators have a defence in the suit at law, viz., the Statute of Limitations. We do not think a party should be compelled to plead that statute. It is not a meritorious defence; and it does not appear that the orators desire to avail themselves of it, and until it does we think the point is not well taken.

III. This bill should have been drawn with a direct allegation that the orators were personally liable upon the note. In this respect it is defective. No copy of the note is given, so that the court *277cannot determine the question. There are no averments in the bill of how the parties understood the contract, only allegations of the evidence upon that point, viz., of what the parties intended to do, not what they did do; of what the claims of Hyde now are, not whether the facts claimed by him are true. The prayer is not to reform the note, and make it accord with the intent of the parties at the time of its execution ; but the relief asked is, that said note should thereafter be treated as the parties thereto originally intended it should be treated, viz., as the note of said society and not of the orators, or either of them; in other words, we are asked to treat the contract as different from what it is. The court have no power to do this. . The prayer should have been to reform the instrument conforming it with what was actually agreed upon by the parties.

IY. The third cause assigned is, that Woodbury is improperly joined. There is no allegation that he signed the note in question, but the writ is made a part of the bill, and that showed that he was sued with the orators, and contains an allegation that he signed the note, and the orators alleged that he refused to join with them -in the bill. If the writ had been simply referred to, it might not have aided a defective statement in the bill, but it is made a part of the bill, and the1 allegation in it, that Woodbury did sign it, is sufficient. Woodbury has appeared, but makes no objection to being joined in the suit. The demurrants cannot avail themselves of this objection if it were a tenable one. The objection made by them is, that Woodbury has no interest in the matter, — the joinder of a party with no interest, not a misjoinder of causes of action. Woodbury only can make the objection. Story tEq. PI. ss. 237, 525, 544. The decree of the Court of Chancery should be affirmed;' but on motion of the orators, it is reversed pro forma, and cause remanded as per mandate.