Hoskins v. McGirl

12 Mont. 563 | Mont. | 1892

He Witt, J.

Was Mund a proper party defendant? Section 16 of the Code of Civil Procedure provides: “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” Had Mund an interest in the controversy adverse to the plaintiff, or was he a necessary party to the complete determination of the matter? The controversy, according to the complaint, was whether defendant had paid a balance on the instrument pleaded. Whether defendant owes plaintiff depends upon whether the debt of Hoskins and McGirl, plaintiff and defendant, to Mund and Snipes, has been paid. Plaintiff says it has; defendant says it has not, that is, so the complaint alleges. Therefore the complaint pleads that there is a controversy between plaintiff and defendant as to whether Mund had been paid the debt described.

The plaintiff asks that the mortgage described be foreclosed, and the property sold, and that an accounting be had between plaintiff and the defendants McGirl, Mund, and others, and, if any amount be found due to Mund from the late firm of Hoskins and McGirl, that the payment of such sum may be provided for in the decree, to be paid out of the first amount; that is, the amount realized upon the foreclosure of the mortgage. To determine the matter fully, it must be ascertained whether plaintiff and defendant, as the firm of Hoskins and McGirl, are liable to Mund on the debt described; for, if Hoskins and McGirl are still so liable, then the maker of the instrument in writing sued on may, as a partner in the late firm of Hoskins and McGirl, become liable to pay such debt. Therefore the plaintiff in the action, Hoskins, of the late firm of Hoskins and McGirl, asks for this accounting between himself and the defendants, including Mund, in order that the fact may be ascertained whether Hoskins and McGirl owe Mund, and, if they do so owe him, that such indebtedness be provided for in the decree.

The action is for a money judgment, and for the foreclosure of a mortgage, and for an accounting between Hoskins and McGirl, Mund, and the other defendants. In an action of this nature, Ave are of opinion that the whole matter should be settled by the court, with all the parties before it at once, and that in such settlement Mund is a proper party. We suggested these views in the decision of Hoskins v. McGirl, ante, p. 246.

It is therefore ordered that the judgment be reversed, and the case remanded, with directions to overrule the demurrer.

Reversed.

Blake, C. J., and Harwood, J., concur.