247 F. 223 | D. Del. | 1917
“That lie [the petitioner] is a necessary party is not apparent but that he is a proper party is sufficiently clear. With the petitioner on the record all the interested parties are before (he court and a decree can be entered determinative of the entire controversy. It is for the interest of all concerned that the questions still in dispute between the parties shall be decided in the pending suit: to commence a new suit will only protract litigation and increase expense.”
A fortiori it was proper to allow an intervention in the cause before this court. In disposing of the demurrer to the amended bill in this case the court used language (164 Fed. 471, 479, 481) not without application in this connection:
“It appears from the amended bill that Mrs. Bastian, as one of the children of Edgar Jamison, is entitled, if entitled at all, to precisely the same measure and kind of relief as Mrs. Mathieson. * * * It is true that the ascertainment of what is due to Mrs. Mathieson involves primarily an ascertainment of what is due to both Mrs. Bastian and Mrs. Mathieson; and it is also true, that, other things being equal, Mrs. Bastian should be a party in order that the defendants should not be compelled to account to her separately from Mrs. Bastian. ~ * * It is proper, also, to add that certain .questions may or may not arise in this suit or certain proceedings hereafter be resorted to therein, the solution or effect of which may or may not tend to obviate the trouble to which it has been suggested the executor, trustee or purchaser may be put, if the bill in its present shape be maintained. It appears that Mrs. Bastian ‘consents to the relief sought in this bill and to all proceedings had and to all orders or decrees made or that may be made by the court in this causo,’ and further, that Mrs. Bastian originally joined as a co-complainant in this case to recover the separable claim made by her. Under these circumstances it is possible, if not probable, that she may apply*226 so to intervene .in tbe suit as to result in a sale of tbe real estate disc-barged from any lien in ber favor and free from cloud or incumbrance on tbe title.”
“Laches with respect to tbe bringing of suit is unreasonable and inequitable delay in proceeding for the .enforcement of a demand or right viewed in tbe light of the circumstances of tbe particular case. No rigid rule as to lapse of time is applicable. It is essentially an equitable defense, and does not depend, like tbe operation of a statute of limitations, upon tbe mere passage of time, but upon tbe equity or inequity of permitting tbe asserted' claim or demand to be enforced.”
Tested by the above definition of laches in connection with the bringing of suit I am unable to perceive that it attaches to Mrs. Bastian in the slightest degree. She and her husband were co-complainants in the bill as originally filed, and this court has held that there was no ladies on the part of the complainants prior to the institution of the suit. By amendment the Bastians were omitted from the bill, they being citizens of Pennsylvania, of which state some of the defendants were also citizens, in order that this court might retain jurisdiction of the cause by reason of diversity of citizenship. The amended bill stated that:
“Tbe said Yesta L. Bastian consents to tbe relief sought in tbis bill and to all proceedings bad and to all orders or decrees made or that may be made by tbe court in tbis cause.”
And on this point she testified:
“Q. Mrs. Bastian, do you consent to tbe proceedings taken in tbis cause by your sister and ber husband and without yourself being a party? A. Yes, sir. Q. Do you consent to tbe further proceedings that may be taken in tbis cause, including such action, or decree, as tbe court may make thereon? A. Yes, sir.”
It is unquestionably true, as stated by the court in disposing of the demurrer:
“Mrs. Mathieson certainly bad a right to sue in tbis court for tbe relief sought by ber. It is equally certain that Mrs. Bastian did not have a right to sue as co-complainant for the relief sought by ber, as jurisdiction would thereby be ousted. Mrs. Bastian, therefore, was dropped as a party,” etc.
Mrs. Bastian could not compel Mrs. Mathieson to consent to a dismissal of theabill as against those defendants between whom and Mrs. Bastian there was no diversity of citizenship, and indeed, until after the opinion of this court had been rendered on final hearing, when for the first time it became plain that those defendants were not necessary parties to the cause, it did not appear to Mrs. Mathieson or her counsel that the bill could with safety be dismissed as to such defendants. Mrs. Bastian having been dropped as a party in order that jurisdiction of the cause might not be defeated, did not display any negligent disregard of her rights and interest in the subject-matter of the controversy. She did not become indifferent to
‘■That all the evidence adduced in said cause prior to the intervention of the said intervenors shall stand and he read as evidence hearing upon the existence and enforceability of the alleged rights and claim of the intervenors, so fur as pertinent thereto, and shall he considered by the court in the determination of said rights and claim, subject to such objections to said evidence as were made during the presentation thereof.”
One effect of this order was that all evidence adduced in this cause prior to the intervention in proof or disproof of points common to the
“It is a well established rule, that a cross bill must be brought before publication has passed in the first cause, unless the plaintiff in the cross bill go to a hearing on the depositions already published. Rep. temp. Finch, 103; Wyat’s P. R. 85; Cooper’s Pl. 87; 1 Johns. Ch. Rep. *64. The object of the rule is to prevent the danger of perjury. It is founded in sound policy, and in a just sense and deep knowledge of the seductions of interest, and the force and influence of the passions. * * * The court will sometimes at the hearing, and in its discretion, direct a cross bill; but this is when it appears that the suit is insufficient to bring before the court the*229 rights of all the parties, and the matters necessary to a full and just determination of the cause. Mitf. Pl. 77. And these instances which I have mentioned, are the utmost length to which the court has gone in the admission of cross bills; they must be brought before publication, and testimony taken in them afterwards cannot be used, unless where some new matter of defense, as a release, arises after the cause is at issue, or the case appears, at the hearing, too imperfect to reach and settle the rights of all the parties. It is too late, after publication, to introduce new and further testimony to the matter in issue, by the contrivance of a cross bill. It would be doing, in an indirect way, per obliqiram, what is forbidden to be done directly. * * * It is infinitely important to the due administration of justice, that the rules of evidence should he stable, and not made to yield to the convenience, or even hardship, of a particular case. If a cross bill could be filed in such a stage of the cause as is presented in this case, and to enable the party to make a fuller defence, ‘by putting in issue and establishing the matters aforesaid, (and' which were the matters in issue in the original cause,) and such other matters as he might he advised to establish,’ the practice of the court would be broken up; litigation would become oppressive, vexatious, and interminable; the door would he opened for fabricated testimony to supply defects, and remove the pressure upon the case; and arbitrary discretion would be substituted for established rules.”
In the above case there was an application for a rehearing, as there was in the case now pending, and also for leave to file a cross bill, and both were denied. Touching the rehearing sought the court said:
“If the Chancellor is satisfied that the cause lias been exhausted by argument, and if he has given to the ease the best examination in his power, and has arrived to a conclusion which satisfies his judgment, I see no propriety, nor use, nor justice, in granting a rehearing, fiord Thurlow once refused to grant it; and I think that this case, under all its circumstances, is one in which the discussion should be closed in this court, and the defendant put to his regular constitutional remedy, by appeal.”
To allow the defendants to go into further evidence as to matters in issue common to both claims, and testified to before the intervention, would essentially involve a rehearing of this cause, which, under the circumstances, would be both improper and unjustifiable.
The order above quoted, however, does not have the effect of precluding either the intervenors or the defendants from adducing evidence not touching points common to the claims of the intervenors and their co-complainants but. relating to points personal to the intervenors and not affecting their co-complainants.
A decree will be entered in accordance with this opinion.