Carroll v. Fethers

• Decision Date: 12 April 1892
• Citation: 51 N.W. 1128,82 Wis. 67
• Parties: CARROLL v. FETHERS ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 67

51 N.W. 1128

CARROLL

v.FETHERS ET AL.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Action by Phillip Carroll against Ogden H. Fethers and others for unlawful conversion of money. From an order joining a third party, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by LYON, C. J.:

The complaint charges that on or about April 9, 1889, the plaintiff was the owner of $7,000 in money, and entitled to the immediate possession thereof, and that the defendants, who were partners and attorneys at law, being in possession of said money, unlawfully and wrongfully converted and disposed of the same to their own use. Demand of said money of defendants, and their refusal to pay $5,550 thereof to plaintiff, is also alleged, and judgment is demanded for the latter sum, together with interest and costs. Besides a general denial, the answer is, substantially, that in two actions in the circuit court, brought by plaintiff against one Little and others, A. Hyatt Smith was attorney for plaintiff, and defendants were retained by plaintiff as counsel therein; that plaintiff prevailed in the actions, and on April 9, 1889, Little paid to defendants, by direction of Smith as such attorney, $6,978.53 on the judgments, for the use and subject to the order of Smith; that they paid plaintiff, by direction of Smith, $1,436.18, also certain disbursements in the actions to the amount of $42.35, and retained, by consent of plaintiff, as their fees and charges for services in the actions, $1,500; that they delivered the balance of the money so paid them by Little, being $4,000, to Smith; and that said $4,000 was so paid to Smith at the request and under the direction both of Smith and plaintiff. The answer further alleges that Smith had a lien on said money for his services in said actions, the existence and amount of which cannot be determined unless he be made a party to this action, and that it is necessary to determine the same herein, and prays that he may be made a party to the action. The answer was accompanied by a verified petition of Smith, setting forth substantially the same facts alleged in the answer, and in addition thereto that plaintiff is indebted to him for services as attorney in the above mentioned actions to an amount exceeding $4,000, for which he claims a lien on the money thus received by defendants from Little, and praying that he (Smith) may be made a party to the action. The circuit court granted such prayer of defendants and Smith, and made an order requiring plaintiff to make Smith a defendant in the action, and prescribing the procedure in that behalf. The plaintiff appeals from such order.Joseph B. Doe and John Winans, for appellant.

Fethers, Jeffris & Fifield, in pro. per.

LYON, C. J, ( after stating the facts.)

The order compelling plaintiff to make Smith a party defendant to the action cannot be upheld, unless it is authorized or required by section 2610, Rev. St., as amended by chapter 41, Laws 1883, (Ann. St. § 2610.) The material portions of the section are as follows: “The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject-matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in; and when, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment.” It will be observed that the statute requires the court to order other parties brought in (1) when a complete determination of the controversy cannot be had without their presence; and (2) when persons not parties have such interests in the subject-matter of the controversy as require them to be made parties for their due protection. These provisions are imperative. The section also confers power upon the court, in actions to recover real or personal property, to grant the application of a person not a party to the action, but who has an interest in the subject thereof, to be made a party. This case is not within the latter provision, because it is not an action to recover real or personal property, but to recover damages for the unlawful conversion of personal property. Neither is it within the second provision above mentioned, because it is not necessary to the protection of Smith that he be made a party. Should plaintiff sue him for the $4,000 which the defendants paid him, or should the defendants sue him to recover it back, his defense to either such action would not be affected in the least degree by the judgment herein....