Peck v. M'Lean

• Decision Date: 18 December 1886
• Citation: 36 Minn. 228
• Parties: HELEN A. PECK <I>vs.</I> JOHN A. McLEAN and another.
• Court: Minnesota Supreme Court

36 Minn. 228

HELEN A. PECK vs. JOHN A. McLEAN and another.

Supreme Court of Minnesota.

December 18, 1886.

Appeal by plaintiff from an order of the district court for Hennepin county, Rea, J., presiding, sustaining a demurrer to the complaint.

J. D. Springer, for appellant.

Flandrau, Squires & Cutcheon, for respondents.

GILFILLAN, C. J.

This cause comes here upon an order sustaining a demurrer to the complaint. The questions raised by the demurrer are that there is a defect of parties, and that the complaint does not state facts sufficient to constitute a cause of action. The case stated by the complaint is this: Plaintiff was the owner of seven-eighths, and Mary F. Aiken of one-eighth, of the steamboat Nellie Peck. Plaintiff was the owner of three-fifths, and John H. Charles, as trustee, of two-fifths, of the steamboat General Meade. Plaintiff was the owner of three-fourths, and H. C. Aiken of one-fourth, of the steamboat General Terry. In January, 1883, the defendants commenced, in the district court of the United States for the district of Nebraska, an action in rem against each of said steamboats, to recover for supplies furnished, and the vessels were taken on mesne process. The said owners filed answers. In July, 1883, a decree was entered by said court in each of said actions, directing the vessel to be sold to satisfy the amount found to be a lien upon it. The owners, in July, 1883, took an appeal in each of said actions to the circuit court of the United States. In October, 1883, at the instance of these defendants, process was issued upon such decree in each of said actions, and upon such process each of the vessels was sold. The amount for which it was sold is stated, but it is not alleged that any part of such amount was paid to these defendants. In August, 1884, the circuit court entered a decree in each action, reversing the decree of the district court.

The plaintiff resides in Iowa; the defendants, in Dakota; Mary F. and H. C. Aiken, in Nebraska; John H. Charles, in Pennsylvania. Plaintiff's co-owners are none of them within the state, or within the jurisdiction of its courts, and they all refuse to join with her in any action or actions in the premises.

The questions presented in the case are, can plaintiff maintain the action under the circumstances without making her co-owners parties? and, if so, can she recover, the defendants not having received any part of the money for which the vessels sold?

The fact that the co-owners are not within the jurisdiction, and cannot be brought in as defendants, is a sufficient reason for not making them defendants, if, in a case like this, that might otherwise be done, under our practice. Such being the case, is it absolutely essential that they be made plaintiffs? The statute (Gen. St. 1878 c. 66, § 26,) provides that "every action shall be prosecuted in the name of the real party in interest." But where there are several who are entitled to the benefit of the relief sought, i. e., several real parties in interest, whether they must all be joined, or whether, under peculiar circumstances, one of them may sue alone, must be determined by the law as it was before the statute, for the latter does not provide for such a case. The general rule is stated by Chitty: "When two or more persons are jointly entitled, or have a joint legal interest in the property affected, they must, in general, join in the action, or the defendant may plead in abatement." 1 Chit. Pl. *64. As to tenants in common, a distinction has always existed between actions for the realty and personal actions. "When the action is in the realty, they must sue separately; when in the personalty, they must join." Hill v. Gibbs, 5 Hill, 56; Co. Litt. 198a. The rule applies to part-owners of ships. "Whether the action be in contract or in tort, for services rendered by, or for injuries done to, their ship, all should join in its prosecution." Freem. Cotenancy, § 387.

It will be seen that Chitty states the rule as "in general," implying that there may be exceptions to it; and, unless there may be exceptions, it is apparent that what is only a rule of practice, affecting only the mode of proceeding to redress a wrong, will sometimes operate to altogether prevent a remedy. The reason for the rule — to protect defendants against multiplicity of suits — is good. But if, adhered to, it will in a particular case cause a failure of justice, the reason for departing from it is stronger than that for the rule. It is better that a defendant should be put to the danger and inconvenience of several suits than that a plaintiff should be deprived of a remedy. So, where a third person colluded with a partner in a firm to injure the other partners, they might, without joining their partner,...