50 Minn. 21 | Minn. | 1892
The contention of defendant is that there could be no recovery in this action, because the husband was joined as plaintiff with the wife, while the cause of action was in the wife alone. The case of Colvill v. Langdon, 22 Minn. 565, is decisive of the question adversely to the defendant. Unquestionably the theory and spirit of the Code is to apply to all actions alike the equity, as distinguished from the old common-law, rule as to a misjoinder of parties plaintiff. The equity rule was that, in case of an improper or unnecessary union of coplaintiffs, the suit did not necessarily fail as to all. The bill might be dismissed at the hearing as to certain of the plaintiffs, and a decree rendered for the others; or some might be struck off upon motion at any stage of the proceedings and the cause go on in the name of the residue. 3 878 G. S. ch. 66, § 124, authorizing the court “at any time, before or after judgment, in furtherance of justice, to amend any pleading, process, or proceeding by adding or striking out the name of any party,” vras doubtless framed with reference to this equity rule. Pom. Rem. & Rem. Rights, §§ 209-216; 17 Amer. & Eng. Enc. Law, p. 616 et seq., and cases cited.
The defendant might, on motion, have had the name of the husband stricken out, or the action dismissed as to him; and probably he might have interposed a demurrer as to the husband, not because of the misjoinder, which is not a ground of demurrer, but because the complaint did not state a cause of action in respect to him. But the
Order affirmed.