Semmes v. Mott
27 Ga. 92
Ga.
1859
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By the Court.

Lumpkin J.

delivering the opinion.

[1.] As to the misjoinder of both complainants and defendants in this case, which is an objection to parties, we hardly think the exception well taken. A decree can be so framed as to protect the rights of all concerned. Suppose the demand of one complainant be $2,000, of another $1,000, and of a third $500, and one of the defendants be held liable for $2,000, another $1,000, and the third $500;. the decree can be so moulded as that each complainant shall recover his proportionate part of these several sums. To sue jointly, and defend jointly, is the best for all concerned, where it can be done. We see no insurmountable obstacle in this case.

[2.] The bill in this case was filed to the -May Term of the Court, 1858. Some of the defendants resided out of the State; and all the partieshad not been served at the November Term ensuing, when these several motions were made. All the defendants- are proper parties. They are not all necessary or indispensable parties. Those that were served filed a demurrer, which was then pending and undisposed of. A motion to dismiss the bill for want of prosecution, under these circumstances, was obviously premature. It is true that, under Mr. Stubbs’ bill of 1857, to regulate proceedings in equity causes, more diligence is required to speed suits in chancery. That measure took effect in April, 1858, and consequently, this case falls within it; still it contains no provision which would justify this application.

It is insisted that an application of this sort must always be preceded by a motion to show cause. 'But we apprehend the motion itself is in the nature of a rule nisi. And of *95course the opposite party must be allowed an opportunity to show cause before a judgment is rendered.

[3.] A third motion was made in this cause, to compel two of the complainants, who were proceeding at law, to enforce the same claims, to elect in which form they would prosecute their rights.

The English rule is never to compel an election until the answer of the defendant is filed. It may be replied, that the defendant can be made to answer here at law; and therefore, the reason for this chancery rule no longer exists. And this is true. Still we are not prepared to hold that this necessarily abrogates the old practice. Under Mr. Stubbs’ bill, (Pamphlet Acts, 1857, p. 106,) the complainant may compel the defendant to testify on the stand, notwithstanding he has filed his answer. In other words, he is entitled to both examinations.

The converse of the proposition should hold, namely: that to be examined orally, as a witness at law, does not necessarity dispense with an answer in equity, to procure which, to> be used as evidence at law, is the reason for the rule requiring the answer in equity to be filed before the complainant will be put upon his election.

As to the want of equity in the bill, my brother Benning and myseli cannot concur in rendering a judgment; And our colleague not presiding in the case, on account of sickness, we have directed the Clerk to certify this fact to the Circuit Court.

Judge McDonald, on account of illness, did not preside in this case.