31 Minn. 230 | Minn. | 1883
The charter of the city of Minneapolis, chapter 8, section 18, (Sp. Laws 1881, p. 465,) provides that no action shall be maintained against the city for damages caused by any person, not authorized by law or the ordinances of the city, placing excavations or obstructions in any street, rendering it unsafe for travel, or by negligence in the management of an authorized excavation or obstruction, or failure to maintain proper guards or lights thereat, rendering the street insufficient or unsafe for travel, unless such person shall be joined as party defendant. At most this gives to the city the right to insist, when it is sued, that the person by whose act or negligence the injury was caused shall be joined with it as a defendant. This it may do by demurrer to the complaint, if the facts giving it the right sufficiently appear from its allegations. If they do not, then it must set forth the facts, and object to the non-joinder by answer. An answer in the nature of a plea in abatement for nonjoinder of a necessary party must always name the person who the defendant claims should be joined. And the plea must, of course, be sustained by the proofs, else the defendant gets no advantage from it. Herein this defendant failed. The special verdict did not establish facts showing that the party named by it should have been joined, and there was no issue as to any.other person. That finding was. immaterial.
Judgment affirmed.
