1 Or. 254 | Or. | 1859
This cause comes up upon writ of error from Multnomah County. The errors assigned are, “that the court below-erred in sustaining defendants’ demurrer, and in giving judgment for defendants.”
No application was made to amend the petition, and hence, if the demurrer was well taken, the judgment for costs rightfully followed the sustaining of the demurrer. From the view taken of this case, it is unnecessary to inquire further, than whether “there is a misjoinder of parties defendant.” It is insisted, by counsel for plaintiffs in error, that a demurrer will not lie for a misjoinder of parties defendant; and the case of Brownson and Wife v. Gifford et al. is relied upon to sustain the position. The learned judge in that case says, that “a demurrer will undoubtedly lie for the non-joinder of the proper parties defendant, but not for the misjoinder of some, who ought not to have been made defendants, with others who are properly sued.” By a careful examination of that case, it will be found that all the defendants therein had a common interest in all the property in question. The law, as applicable to that case, was unquestionably well adjudged; but that such a doctrine is applicable in equity, where the interests of the defendants are wholly distinct and unconnected, and where there is no fraud or combination, cannot be maintained upon principle. Courts of equity, upon the subject of misjoinder of parties, have been governed much by the character of the case under consideration; yet all courts of equity, and all authors upon this branch of jurisprudence, admit multifariousness to be, now as heretofore, in equity pleadings, a shoal to be avoided.
“ A bill should not be what is technically termed multifarious ; for, if it be so, it is demurrable, and may be dismissed by the court of-its own accord, even if not objected to by the defendant. By multifariousness in a bill is meant the improperly joining in one bill distinct and independent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters, perfectly distinct and unconnected, against one defendant; or, the demand of several matters, of a distinct and independent nature, against several defendants in the same bill.” (Story’s Eq. Pl. sec. 271; Mitford’s Eq. Pl., by Jeremy, 181; Cooper’s Eq. Pl. 182.)
“When the subjects of the suit are, in themselves, perfectly distinct, the demurrer will hold; and a plaintiff cannot bring into the compass of one suit such different objects.” (6 Johnson Ch. Rep. 156.)
In order to entitle a complainant in chancery to join several persons as defendants, it is absolutely necessary that such persons have a community of interest in, at least, some one material subject-matter of the suit. In the subject under consideration, it does not appear that Orange S. Hall, at the time of his decease, possessed any interest in any of the property in which dower is claimed, to pass to the infant, Mary Hall; nor does it anywhere appear, that the infant, Mary Hall, has any interest in such property. Delschneider has an interest in lot five, in block 26, only. McMillen and Hal_ lock have an interest, only, in lot four, in block 26. Starkey and Abrams have an interest in parts, only, of lots four and five, in block 27. Coleman is administrator de bonis non
The interests of the defendants, as far as they hare any, are distinct and unconnected, and there is no community of interest between them that authorized their being joined as parties defendants. . .
The judgment of the court below, therefore, should be and is affirmed-
