| Ill. | Dec 15, 1857
It is a rule in courts of equity, that all persons are to be made parties to a suit therein who have any substantial, legal or beneficial interest in the subject matter of the litigation, and who are to be materially affected by the decree which may be rendered. Spear v. Campbell et al., 4 Scam. R. 426.
This rule may be considered as inflexible, yielding only when the parties are very numerous, and so scattered that their names or residence cannot be ascertained without great and extraordinary difficulty. 1 Scam. R. 573.
Testing this case by this rule, it will be apparent that one person, having an important interest in this proceeding, and substantially affected by the decree, has not been made a party.
Although the object and scope of the bill be to remove a cloud supposed to rest upon the title of the appellee, the court should be careful to see that all persons to be affected by its removal, if their interests are at all considerable, should be parties, that they may be heard.
The origin of appellant’s title, which is alleged to have formed this cloud, was in a note which, sometime in the spring of 1852, one Jabez J. Piggot, Bryant Whitfield and A. Kenney had executed to the appellant. On this note, in May, 1852, appellant commenced suit by summons against these makers, in the Hancock Circuit Court. Whitfield alone was served with process. At August term, 1852, Piggot entered his appearance and gave a cognovit. In December, 1852, appellant sued out of the Hancock Circuit Court an attachment, directed to the sheriff of McDonough county, against Piggot, in aid of this suit, which was levied upon the land which is the subject matter of this bill.
Judgment was rendered in the Hancock Circuit Court at March term, 1853, against Piggot and Whitfield, for $314.80, damages and costs, and a special exemption awarded to McDonough to sell the land levied on by the attachment.
It seems the note on which the suit was brought was lost, and Whitfield was defending the suit, whereupon it was agreed, in writing, between appellant and Whitfield, if he would abandon his defense, he being security only, that appellant should sell this land they levied on for all that it was worth, and apply the same upon the judgment, and if not sufficient to satisfy it, Whitfield should not be required to pay on the balance remaining more than one hundred dollars, and on payment of that sum Whitfield was to be discharged from the judgment.
By the decree of the Circuit Court, from which this appeal is taken, this writ of attachment, levy and sale under it, are set aside and vacated, and “ the satisfaction of the judgment upo.n which the sale was made, so far as made by said sale, be and the same is hereby vacated, and that a new execution issue therefor.”
The land sold for two hundred and fifty dollars on the execution. By vacating the sale, and the satisfaction of the judgment to this extent, the judgment is put in full force against Whitfield, and his property subject to be taken and sold on execution, and this notwithstanding the agreement, for by the decree there has been no sale and no part satisfaction of the judgment. Whitfield, if not bound for the whole judgment, has certainly such an interest in the proceedings .to vacate the satisfaction of the greater part of it, as to render it indispensable that he should be a party. He has a right to be heard. He is certainly in peril to the extent of one hundred dollars, part thereof.
This objection was not made in the Circuit Court, but is made here for the first time.
It is the usual and better practice, where the want of proper parties is apparent on the face of the bill, to take advantage of it by demurrer or motion to dismiss, or if not patent, by plea or answer. Where the parties omitted are mere formal parties, and not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing, but where the rights of the parties not before the court are intimately connected with the matter in dispute; so that a final decree cannot be made without materially affecting their interests, as in this case, the objection may be taken at the hearing, or on appeal, or on error. Courts will, ex officio, take notice of such omission, and rule accordingly.
As to the interests of Kenney, they are so remote, not haying been served with process, and no proceeding of any hind against Mm, it is hardly necessary to make him a party.
We will touch no other point in the case until the proper parties are before the court.
The decree is reversed and the cause remanded, with leave to •complainant, the appellee here, to amend his bill.
Decree reversed.