Wm. Lyne v. Marcus Guardian

• Decision Date: 30 November 1823
• Citation: 1 Mo. 410
• Parties: WM. LYNE v. MARCUS GUARDIAN ET AL
• Court: Missouri Supreme Court

1 Mo. 410

WM. LYNE

v.MARCUS GUARDIAN ET AL

Supreme Court of Missouri.

November Term, 1823.

APPEAL FROM THE CIRCUIT COURT OF WAYNE COUNTY

M'GIRK, C. J.

A bill in Chancery was brought by William Lyne, against divers persons, devisees, and legatees of one Joab Lyne, and against the executor, to set aside a will; and the bill goes against the subscribing witnesses, for a discovery. The bill charges, that the testator was not of sound and disposing mind; that he was practised on by the parties, and that the testator never consented to the same, when he was in a compos mentis situation. It also charges, the will was a forgery. It charges, that these persons, or some of them, have taken possession of the estate, real and personal, and that they keep the complainant out of possession thereof; that the will is void, and that he is the sole heir and distributee at law. The answer of some of the defendants, denies all fraud and forgery, confederacy and combination, &c., and prays an issue to be made up to try the validity of the will An issue is made and tried, and the will is found to be the will of Joab Lyne The Court decreed that it was the will of Joab Lyne, and dismissed the bill The Court, before any answer, on motion of the defendants, struck from the cause, as defendants, the executor and the witnesses to the will. An objection is made, as to the finding of the jury, which we need not notice, because the proceedings are erroneous in other respects. The first point we will notice, is the act of the Court in striking out the names of some of the parties. The law is, that all proper parties must be plaintiffs and defendants If unnecessary parties are made defendants, the Court will, on the application of the plaintiff, strike them out: Harrison Ch. 76. But here the parties discharged were defendants, and they were struck out on their own motion. It is said, by the same book and page, that if unnecessary parties are inserted in a bill, the Court will, on application, permit the necessary alteration to be made But that does not mean, that the Court will, on the motion of the defendants, when they may think they are unnecessarily made parties, strike them out But the rule is, that the parties, defendants, may demur, if the matter appears on the record, if not, they must plead it (2 Mad Chan 142). And again, persons who may be examined as witnesses, against whom no relief is prayed, ought not to be made parties, and such unnecessary parties may demur, or plead...