30 Ill. 37 | Ill. | 1862
The practice, to dismiss a bill in chancery, on motion, has not generally obtained in the courts of Great Britain, or in this country, unless it be for want of equity, apparent on the face of the bill, and where it is manifest no amendment could help it, or for want of jurisdiction. -For a want of proper parties it is not the practice to dismiss on motion. When there is equity in the bill, and all the necessary parties are not before the court nor in the bill, the rule is, to hold the bill, in order that proper parties may be made to it.
The objection here was, that all the judgment debtors were not made parties. This was a good objection, but the court, instead of dismissing the bill, should have retained it in order that proper amendments might be made, and the proper parties brought in. This objection, made at the hearing, could be obviated, and therefore it was error to dismiss the bill. Story’s Eq. Pleading, secs. 75, 76, (b). The cause will be remanded, with leave so to amend the bill as to make the judgment debtors parties ; and if, on the hearing, by the testimony, it should appear that the intestate Wynn was surety merely on the notes on which the judgments were obtained, the complainant should be required to exhaust his remedy against the principals therein, especially, so far as the levy on the land is concerned. If, however, it should appear that Wynn was the principal debtor, and the owners of the land on which the levy was made were sureties, then the complainant’s demand should be made out of the estate of Wynn, in the hands of his heirs, which came to them by descent or devise, and they should be required to discover its extent and description. This would be equity, and this the court should do, and the bill seeks this discovery.
When the judgment debtors are before the court, they may, on taking an account, show enough to discharge the heirs of Wynn, by charging themselves. At any rate they are interested in stating the account, and are necessary parties. There is no doubt about the right of complainant to bring this suit in chancery, for the relief he seeks. Chadsey's Adm'rs v. Lewis, 1 Gilm. 137; Fry v. Bank of Illinois, 5 id. 336; Leach v. Thomas, 27 Ill. 457.
The decree is reversed, and the cause remanded, with leave to the complainant to amend his bill.
Decree reversed.