42 F. 566 | U.S. Circuit Court for the District of Kansas | 1890
(after stating the facts as above.') There is some confusion in parties complainant, and mingling of distinct claims for relief,, in the bill of complaint, which, even under the flexible and versatile, rules of equity pleading and remedies, are hardly permissible. Wollstein, the .non-residentimporter, is joined as co-complainant with his agent, Sicher, and the subagent, Schmidt. The only interest, recognizable in equity, Wollstein is shown to have, is that, as an importer, his property; rights and interests may be affected by the threatened acts of the respondent. .But the other co-compfainants are not so interested therein as to authorize their joinder, or entitle them to any relief on that ground. It is .a general rule of equity pleading that no person should be made a party who is not interested in the subject-matter of the suit, and. for or against-whom no decree can be made... It is on this ground that agents, as a- rule, ^are not joined with the principal. Story, Eq. PI. § 231.- '.’As to the threatened prosecutions against Sicher and Schmidt, either criminally'or civilly, under the contempt proceeding for violating the injunction ¡order of the state court, it would be wholly personal as ..to them,,-as,affecting
In Hudson v. Maddison, 12 Sim. 416, a bill by several occupants of houses to restrain the erection of a steam-engine, which would be a nuisance to each of them, it was held that each occupier had a distinct right of suit, and consequently could not sue jointly. This was placed on the ground “that, as each of them has a separate nuisance to complain of, that which is an answer to one may not be an answer to the other; and if, upon such a bill, a decree were to be pronounced, it must be a decree which would provide for five different cases.” So if we should apply to the facts of the case as disclosed by the bill, the ruling in Tuchman v. Welch, ante, 548, (opinion filed of this date,) holding that complainants are entitled to the relief prayed for against the threatened proceedings in the contempt warrant, in the nature of an ancillary proceeding in the several cases, we are confronted with this formidable difficulty: It appears from the petition, as also from the exhibits thereto, that the suits in the state court in which the temporary orders of injunction were granted were separate actions, and separate restraining orders were issued against Sicher and Schmidt. The action against them was not joint. The breach of the order would be the individual act of each, and the contempt warrant would be issued separately in each case, or might issue against one and not the other, as one might violate it and the other not; and the answer which one might make the other might not. The parties were separately indicted or informed against, and separately enjoined. Both being servants of Wollstein, or, at least, Sicher being such servant, and Schmidt his subagent, each is responsible to the law of Kansas for his own act, and not that of his fellow-servant or principal. While they might jointly make a sale, and by that common act violate the order of injunction, yet, as the matter stands, the respondent could only proceed against them separately for contempt. The joint suit to enjoin against the threatened action, in our opinion, is improper.
The remaining matter sought tobe enjoined is the threat of respondent to 'continue to harass Sicher and Schmidt with other criminal prosecutions for any future like sales. As each could be separately prosecuted for his act, and as the joint sale of a package would be an act so improbable, we perceive no propriety in a joint proceeding of injunction. In other words, as mere employes, servants of the importer, with no ■community of interest in the property, presumably receiving separate
In view of this conclusion, we omit any discussion of the right to relief sought in a proper form of action. It follows that the writ of injunction is disallowed.
