53 Miss. 694 | Miss. | 1876
delivered the opinion of the court.
The defendant in chancery may present his objection of the nonjoinder of a necessary party by demurrer, if the absence of a necessary party is apparent on the face of the bill; or he may plead this fact, or set it up in his answer. If a plea is filed, the complainant may set the plea down for hearing on its sufficiency, or take issue upon it. If the objection is taken by the answer, its averment as to that is like any other statement of the answer, and to be treated accordingly. If the complainant does not act on the objection taken in the answer, and the cause proceeds to final hearing,- the court must determine whether all necessary parties are before it to justify a decree. If the averment of the answer as to the nonjoinder of a necessary party is not responsive to the bill, and is unsustained by evidence, the court should disregard it, for a complainant shall not be delayed in his suit by an unfounded objection of the want of a necessary party. To enable the court to sustain the objection for nonjoinder of parties, it must appear like any other material fact in the case.
In this case the averment of the answer that one of the notes secured by a lien on the land had been transferred, and was outstanding in the hands of the assignee of the complainant, is not responsive to the bill, and, being unsupported by evidence, cannot be taken as true. The denial by the answer of the allegation of the bill that the first note had been paid, is directly responsive, and must be accepted as true; but that the complainant has sued the defendant on but one note, when he might have sued him on two, is not a defence to this suit.
The final decree in favor of the complainant should not have been set aside. The complainant is entitled to a decree. The decree vacating the final decree in favor of the complainant is reversed, and decree here granting the relief prayed . by the bill.
