234 F. 375 | W.D. Wash. | 1916
The bill of complaint states that the Inland Navigation Company is a Washington corporation, and that the Colman Dock Company is a Washington corporation, each having its principal place.of business in Seattle, Wash.; that the plaintiff is the owner of certain letters patent, and then charges “that the said Inland Navigation Company, a corporation, and the Colman Dock
“In Oliver v. Piatt, 3 How. 333, 411 [11 L. Ed. 622], we said, ‘It was well observed by Lord Cottenham, in Campbell v. Mackay, 1 Myl. & Cr. 603, and the same doctriné was affirmed in this court in Gaines and Wife v. Relf and Chew, 2 How. 619, 642 [11 L. Ed. 402], that it is impracticable to lay down any rule as to what constitutes multifariousness as an abstract proposition; that each ease must depend upon its own circumstances, and much must necessarily be left, where the authorities leave it, to the sound discretion of the court.’ We further said that the objection of multifariousness cannot, ‘as a matter of*377 right, bo taken by the parties, except by demurrer, or plea, or answer, and if not so taken, it is deemed, to be waived’; that although the court may take the objection, it will not do so unless it deems such course necessary or proper to assist in the due administration of justice. Story, Eq. Pl., §§ 530, 54.0; Shields v. Thomas, 18 How. 253 [15 L. Ed. 368]; Fitch v. Creighton, 24 How. 159 [16 L. Ed. 596]. No objection was taken by the defendants in the court below to the complaint upon the ground of nmltifariousness or misjoinder, and the plaintiffs should not be heard to make it for the purpose, or with the effect, of defeating the right of removal.”
“Multifariousness as to subjects or parties, within the jurisdiction of a court of equity, cannot be taken advantage of by a defendant, except by demurrer, plea, or answer to the bill, although the court in its discretion may take the objection at the hearing, or on appeal, and order the bill to be amended or dismissed. Oliver v. Piatt, 8 How. 333, 412 [11 L. Ed. 622]; Nelson v. Hill. 5 How. 127, 132 [12 L. Ed. 81].” Hefner v. Northwestern Life Ins. Co., 123 U. S. 737, at page 751, 8 Sup. Ct. 837, 31 L. Ed. 309.
“The principle of multifariousness is one very largely of convenience, and is more often applied where two parties are attempted to be brought together by a bill in chancery who have no common interest in the litigation, whereby one party is compelled to join in the expense and trouble of a suit in which he and his codefendant have no common interest, or in which one party is joined as complainant with another party with whom in like maimer he either has no interest at all, or no such interest as requires the defendant to litigate it in the same action. Oliver v. Piatt, 3 How. 333 [11 L. Ed. 6221; Walker v. Powers, 104 U. S. 245 [26 L. Ed. 729].” United States v. Bell Telephone Co., 128 U. S. 315, 352, 9 Sup. Ct. 90, 32 L. Ed. 450.
The motion must be denied, but I think the bill should be amended, and an order to that effect may be presented.