126 Wis. 385 | Wis. | 1905
Affirmance of the order appealed from is of ■course, for appellant made no denial of the breaches of condition alleged in the complaint, nor any showing against plaintiff’s right to the judgment demanded. One whose rights ■cannot be prejudicially affected by the judgment has no ab■solute right to be made a party. Field v. Heckman, 118 Wis. 461, 95 N. W. 377. Nor can this court reverse action of the ■circuit court which does not “affect the substantial rights” of appellant. Sec. 2829, Stats. 1898.
Inasmuch, however, as it is possible that this defect might be cured upon a new application, wé proceed to consider the •question whether, assuming that appellant might be able to negative the allegations of the complaint, her presence to the action would be so indispensable that she must be joined. Indispensable parties are those who have “an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent
A decree in this action canceling the deed as against the husband and ordering him to deliver possession to plaintiff, in absence of appellant as a party, could not affect her inchoate right of dower or homestead, nor conclude her from asserting such rights after her husband’s death. Madigan v. Walsh, 22 Wis. 501; Foster v. Hickox, 38 Wis. 408, 412. Such judgment, therefore, would in no wise affect any rights, which she may have in the premises, unless she has some legal right of possession which would be disturbed by giving the possession over to the plaintiff. She has, however, no right
The conclusion is irresistible that the court could grant the complete relief demanded in this action against the husband without concluding or prejudicing any legal rights of the appellant and without subjecting the defendant to any liability to her or others which would make enforcement of the decree against him inequitable, unless such others were concluded thereby, as in Gastle v. Madison, supra. Hence appellant is not an indispensable party, although a proper one, whom plaintiff, if she chose, might join in order to conclude appellant in the event that she outlived her husband. This conclusion has support from decisions upon analogous situations. Foster v. Hickox, 38 Wis. 408; Carroll v. Fethers, 82 Wis. 67, 51 N. W. 1128; Swihart v. Harless, 93 Wis. 211, 67 N. W. 413; Hunt v. McDonald, 124 Wis. 82, 102 N. W. 318; Edwards v. Richards, 95 Ga. 655, 22 S. E. 690; Silberberg v. Pearson, 75 Tex. 287, 12 S. W. 850. The case of Weston v. Weston, 46 Wis. 130, 49 N. W. 834, is entirely distinguished by the fact that there the wife had a personal right of possession by virtue of a divorce judgment.
By the Oowrt. — Order appealed from is affirmed.