Mash v. Bloom
| Decision Date | 12 December 1905 |
| Citation | 126 Wis. 385,105 N.W. 831 |
| Parties | MASH v. BLOOM. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.
Action by Rebecca M. Mash against George F. Bloom, in which Sarah Bloom petitioned to be made a party. From an order denying her petition, she appeals. Affirmed.
Plaintiff commenced an action against George F. Bloom, sole defendant, alleging her old age and needs, also ownership of two houses on the respective halves of lot 5, in Madison, the conveyances of one of the houses and the northeast half of the lot to the defendant, George F. Bloom, upon the sole consideration of the agreement, expressed therein, that he and his wife should reside on the granted premises, and help take care of and nurse the plaintiff, and administer to her natural wants, as good, loving, affectionate, and kind children would do for a parent, during her natural life. Further, that the defendant and his wife have wholly failed and refused to perform such consideration, and have substituted the reverse conduct, except perhaps that they have continued to live in the house. The complaint declares plaintiff's election to rescind said deed. The prayer was for the cancellation of the deed, the restoration of the real estate to the plaintiff freed from all the rights of the defendant, for general relief, and that the defendant and his family be excluded, and that plaintiff recover for the use and occupation of the real estate after the commencement of the suit. Thereafter, Sarah Bloom, wife of George F. Bloom, presented a petition setting forth the commencement of such action, asserting claims and interests in said premises as the wife of Bloom, that the agreement was that she should have an interest, and that she claims inchoate right of dower and a homestead right, and that it is necessary to the protection of her rights in respect to said property that she be made defendant, and that she is willing to be bound by the judgment in that case. The petition contained no suggestion of any denial of the allegations of the complaint, or the existence of any other defense to the action. Upon such petition and the complaint she moved to be made a party defendant. Upon such application and certain affidavits for the plaintiff showing that no contract existed except the deed above mentioned, the court made an order denying such application, from which Sarah Bloom appeals.Tenney, Hall & Tenney, for appellant.
Frank E. Parkinson, for respondent.
DODGE, J. (after stating the facts).
Affirmance of the order appealed from is of course, for appellant made no denial of the breaches of condition alleged in the complaint,nor any showing against plaintiff's right to the judgment demanded. One whose rights cannot be prejudicially affected by the judgment has no absolute right to be made a party. Field v. Heckman, 118 Wis. 461, 95 N. W. 377. Nor can this court reverse action of the circuit court which does not “affect the substantial rights” of appellant. Section 2829, Rev. St. 1898.
Inasmuch, however, as it is possible that this defect might be cured upon a new application, we proceed to consider the question whether, assuming that appellant might be able to negative the allegations of the complaint, her presence to the action would be so indispensable that she must be joined. Indispensable parties are those who have “an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” An illustration is Castle v. Madison, 113 Wis. 346, 89 N. W. 156, where the lowering of a dam as prayed in the complaint would necessarily injure the property of those not made parties and would subject the city of Madison to suits by them for damages. Another excellent illustration is Carney v. Gleissner, 62 Wis. 493, 22 N. W. 735, an action of replevin against the husband for property which the wife claimed to own and to have placed in the custody of her husband as agent, and where judgment giving the possession of the property to the plaintiff would of course deprive her of it. Another class of parties, called by the Supreme Court of the United States “necessary, but...
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