55 A. 488 | Md. | 1903
The bill of complaint of the appellant sets forth that three judgments were entered by a Justice of the Peace, Lucchesi, one of the defendants, in favor of the appellee Wilmer, and *727 three judgments against James A. Galloway. That these judgments were obtained on the following facts: Ridgely, on the 19th of December, 1900, borrowed from Wilmer thirty dollars and gave him his note for $33; in February, 1901, he borrowed ten dollars and gave his note, endorsed by Galloway, for $11; and on December 27th, 1900, borrowed ten dollars and gave his note, endorsed by Galloway for $11. Copies of the notes filed in the record show, however, that the notes were given to Galloway. It also appears that both Ridgely and Galloway agreed that on default of payment at maturity of the principal and interest, judgment by confession might be entered in favor of the holder of the notes, to include ten per centum for expense of collection, ten dollars as an appearance fee for attorney and costs of suit; and they also waived appeal, supersedeas, bankruptcy, injunction, summons and appearance in any Court or before any Justice of the Peace having jurisdiction. The bill further alleges that the judgments against the appellant, amounting in the aggregate to $93.39, and against Galloway, aggregating $94.14, were entered by the Justice of the Peace without any summons or appearance; that at the time the judgments were rendered Ridgely had already paid Wilmer $58, or eight dollars more than in fact the latter had received; and for that reason Ridgely had refused to make more payments. It is charged that the notes were usurious, and the judgments fraudulently obtained; and to enforce the latter would cause great and irreparable loss and damage. The complainant claims to be entitled to have the notes and judgments cancelled, and prays that the appellees may be restrained by injunction from enforcing them. Galloway is not joined in the bill. The usual order for a preliminary injunction was issued, and both the appellees answered. Wilmer denied the alleged fraud and averred that he bought the notes; and by the seventh paragraph of his answer sets up that the complainant has a full remedy at law; and further that the "plaintiff has failed to make proper parties because James Galloway is a proper party; and that the person who signed the bill was not at that *728 time an attorney of the Court." The appellant joined issue On the 24th day of September, 1902, leave was granted to take testimony, but the record fails to show that any was taken.
On the 2nd day of April, 1903, the appellees moved in writing to dismiss the bill because "the plaintiff has failed to comply with the provisions and requirements of the 35th General Rule of Pleading, in reference to the objection for want of parties." On the 2nd day of April, 1903, after a hearing and the argument of counsel the Court dismissed the bill "Without prejudice to the plaintiff to file a new bill with the proper parties;" and from this decree the appeal has been taken.
A motion was made to dismiss the appeal; and of the two grounds assigned, the first was, because the decree being "without prejudice to the plaintiff," does not adjudicate any right of the parties, and is not therefore so far final as to authorize the appellant to prosecute an appeal. Whatever might be the force of this consideration as ordinarily applied, in this case it cannot apply, because of the fact that this particular decree had the effect of dissolving the injunction. Wagoner v. Wagoner,
So far as the record shows therefore Galloway has no interest in the questions litigated, or sought to be litigated, between the complainant and defendants. That in substance is only shall Wilmer be permitted to collect the judgments from Ridgely or out of his property and not from Galloway. The bill makes no common ground between Galloway and Ridgely. If Wilmer should attempt to collect out of Galloway, it would be the latter's privilege and business to proceed on his own behalf.
"No one need be a party plaintiff in whom there exists no interest." Kerr v. Watts, 6 Wheaton, 559; Wright v. SantaClara M. Ass.,
The relief asked by Ridgely is for an injunction restraining the defendants from enforcing the judgments against himself and against Galloway, and for general relief. It need not be said that the relief asked for in behalf of Galloway could not be allowed, he not being a party; but that fact alone will not, as we have said, preclude the complainant from obtaining such relief as he may be entitled to within the scope and object of the bill which he has asked for himself. Fenby v. Johnson,
If it be conceded that Galloway was not a necessary party, can it be successfully maintained that in dismissing the bill the Court acted within the limits of any discretion it may have had under the statute? It is there provided in substance that *731
if the cause be set down for hearing "for want of parties," and the objection be allowed, the "plaintiff shall have liberty to amend on paying costs of the amendment; but if the plaintiff, notwithstanding the suggestion of the defendant, in his answer, that the bill is defective for want of parties, shall not set down the cause for hearing on that objection only, but shall "therewith proceed to a hearing" and the objection be allowed, he shall not be entitled to amend "as of course" but the Court or judge may "if it be thought fit" dismiss the bill. It then appears that the power of the Court as conferred by the Act is dependent for its exercise upon a judicial finding upon the terms and condition of the statute that the bill is defective for want of parties. That must be found by the Court before the Court has power to exercise its alleged discretion in respect to the dismissal of the bill. If it should undertake to dismiss the bill solely under the rule for want of parties before there had been a determination that new party plaintiffs were necessary, manifestly it would exceed its authority. The discretion to which we have alluded can be exercised only on a final hearing. It seems to be no less clear that if it should erroneously decide that a new party was necessary, and should then dismiss the bill, its order of dismissal would also be in error, not because it had exercised its discretion wrongly, or unwisely, but because the occasion for its exercise had not arisen. In Negroes Bell v.Jones,
Inasmuch as we have found that Galloway was not a necessary party to enable the appellant to obtain the relief he asks for himself, the decree dismissing the bill must be reversed.
Decree reversed and cause remanded, etc.
(Decided July 1st, 1903.) *732
