Norwood v. Memphis & Charleston Railroad

72 Ala. 563 | Ala. | 1882

SOMERYILLE, J.

The bill is filed by the appellant, as complainant, against the Memphis and Charleston Railroad Company, a body corporate, and also several directors of the company, who are made defendants in their individual capacity.

The bill manifestly makes no case against these directors, alleging no fraud, conspiracy, or breach of trust on their part; nor is there any prayer for relief against them. There is no demurrer on their part, however, for the erroneous misjoinder; and the rule is well settled, that the right of objection is personal to them, no co-defendant being allowed to take advantage of it. — 1 Brick. Dig. 753, § 1689.

The point in the case is this. The defendant railroad company interposed a demurrer, based upon this misjoinder of the directors; and the chancellor erroneously sustained it, no order being made as to the dismissal of the bill. Is this ruling not an error without injury to the appellant? We think it clearly is; for there is no possible aspect of the case made by the billy in which the complainant could be prejudiced. As we have said, the directors were not proper parties defendant, and no-relief was sought against them. It was not permissible to make them defendants for the sole purpose of discovery; for mere witnesses, who are shown to be cognizant of alleged facts, can never be joined for such a purpose.—Howe v. Best, 5 Madd. 19; Story’s Eq. Plead. § 235, note 2. It was competent for the complainant to have proved these facts by the depositions of these witnesses, and no reason is given why this could not be done. Their answers in the case would clearly not have been evidence against the railroad company, their co-defendant. Julian v. Reynolds, 8 Ala. 680.

The decree, being without prejudice to the appellant, although erroneous, must be affirmed.