a decree which does complete and full justice between them. Such persons must be made parties if practicable in obedience to the general rule which requires all persons to be made parties who are interested in the controversy in order that there may be an end of litigation; but the rule in the federal courts is that if they are beyond the jurisdiction of the court, or if making them parties would oust the jurisdiction of the court, the case may proceed to a final decree between the parties before the court, leaving the rights of the absent parties untouched, to be determined in any competent forum. Indispensable parties are those who not only have an interest in the subject-matter of the controversy, but an interest of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience." 1

§ 56. Formal parties and parties without interest.Where a bill was filed on behalf of a wife and her children

1 Caldwell, J., in Chadbourne's Ex'rs v. Coe (1893), 10 U. S. App. 83; citing Shields v. Barrows, 17 How. 130, 139; Ribou v. Railroad Companies, 16 Wall. 446, 450; Coiron v. Millandon, 19 How. 113; Williams v. Bankhead, 19 Wall. 563; Kendig v. Dean, 97 U. S. 423; Alexander v. Horner, 1 McCrary, 634. In the same opinion the learned judge said in explanation of the rule:-"The general rule as to parties in chancery is that parties falling within the definition of necessary parties must be brought in for the purpose to end the whole controversy, or the bill will be dismissed; and this is still the rule in most of the State courts. But in the federal courts this rule has been relaxed. This relaxation resulted from two causes: first, the limitation imposed upon these courts by the citizenship of the parties; second, by their inability to bring in parties out of their jurisdiction by publication. The extent of the relaxation of the

general rule in the federal courts is expressed in the forty-seventh Equity Rule. [See the appendix to this work.] That rule is simply declaratory of the previous decisions of the Supreme Court on the subject of the rule. The Supreme Court has said repeatedly that notwithstanding this rule, a circuit court can make no decree affecting the rights of an absent person, and that all persons whose interests will be directly affected by the decree are indispensable parties; " citing in addition to the cases supra. The Cole Silver Min. Co. v. Virginia &c. Co., 1 Sawyer, 685. Accordingly it was held that a creditor cannot maintain a bill to establish a debt against his alleged debtor, annul the debtor's conveyances and contracts, and appropriate his property and money to the payment of the creditor's alleged debt, without making the debtor a party to the bill seeking such relief.

against her husband and a trustee and purchasers from the latter with notice, for the purpose of enforcing the trusts of a marriage settlement and obtaining an account, it was decided that the husband was a merely formal party, and his joinder could not, by reason of his having the same citizenship as the plaintiffs, oust the jurisdiction of the court.1 Where persons are made defendants who have no connection with the main controversy, but occupy substantially the position of mere garnishees, and are brought in as parties for the sake of preserving the means whereby the complainants may, if successful in the suit, obtain satisfaction of their demands against the principal defendant, their relation to the suit is of such an incidental nature as to render their citizenship immaterial. So, also, if "the real and only controversy is between citizens of different States or an alien and a citizen, and the plaintiff is by some positive rule of law compelled to use the name of another to perform merely a ministerial act, who has not, nor ever had, any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the litigation before them exists."

§ 57. Interested but not indispensable parties.-The owner of land to which there was an apparent but contested outstanding legal title with an equitable title attached brought an action to divest the title of the equitable claimant, without joining as party defendant the pretended owner of the legal title. The latter was held not to be a necessary party. When

1 Wormley v. Wormley, 8 Wheat. clared to be merely nominal parties. 421.

2 Bacon v. Rives, 106 U. S. 99. 3 Walden t. Skinner, 101 U. S. 577, 589, citing McNutt v. Bland, 2 How. 9, 15; Browne v. Strode, 5 Cranch, 303; Coal Company v. Blatchford, 11 Wall. 172, 177; Arapahoe County v. Kansas Pac. Ry. Co., 4 Dill. 277, 283. Where a bill sought a foreclosure and sale subject to prior mortgages, conceding all that could by any possibility be claimed under them, the trustees of those mortgages were de

Pacific R. Co. v. Ketchum, 101 U. S. 289. See, also, Taylor v. Holmes, 14 Fed. Rep. 499; New Orleans Canal & Banking Co. v. Stafford, 12 How. 327; Simms v. Guthrie, 9 Cranch, 19, 25; Boon's Heirs v. Chiles, 8 Pet. 532; Stewart v. Chesapeake & Ohio Canal Co., 1 Fed. Rep. 361.

4 Williams v. United States, 138 U. S. 516, where the court said: "Doubtless the court has power, when a separate action is instituted against one, to require that the other

a suit is brought against trustees to charge them merely with personal liability for their fraudulent acts, the cestui que trust may join all the trustees who have participated in the fraudulent acts of which he complains, or he may proceed against one or more of them severally at his election. The right of action in such cases arises ex delicto, and in equity as well as at law the tort may be treated as several or joint, at the election of the injured party. Such a case supplies an exception to the rule that in suits against trustees all of the trustees must be made parties. But if it is sought to restrain the defendants from participating in acts which they and their cotrustees are about to perform, the latter have a right to be heard before they shall be wholly prevented by an injunction against the defendants from doing what they propose.2

§ 58. Omission of parties not within the jurisdiction.— The United States Revised Statutes provide as follows:"Where there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it, but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor volunta

party be brought into the suit, if it appears necessary to prevent wrong and injury to either party, and to thus fully determine the title in one action; but such right does not oust the jurisdiction of the separate action against either." See, also, Story v. Livingston, 13 Pet. 359. "Where a person is interested in the controversy but will not be directly affected by a decree made in his absence he is not an indispensable party, but he should be made a party, if possible; and the court will not proceed to a decree without him if he can be reached." Williams v. Bankhead, 19 Wall. 571; quoted as above and applied in Hays v. Humphreys (Mo.,

1889), 37 Fed. Rep. 283, 285. Where the interest of a party who is omitted is separable the relief granted will always be so modified as not to affect his interests. Mechanics' Bank v. Seton, 1 Pet. 299; Cameron v. McRoberts, 3 Wheat. 591.

I Wall v. Thomas, 41 Fed. Rep. 620, 621; Boyd v. Gill, 19 Fed. Rep. 145; Hazard v. Durant, 19 Fed. Rep. 471, 476; Cunningham v. Pell, 5 Paige, 607; Parsons v. Howard, 2 Woods, 1,5; Heath v. Erie Ry. Co., 8 Blatchf. 345, 347; Franco v. Franco, 3 Ves. 75; Wilkinson v. Parry, 4 Russ. 272.

2 Wall v. Thomas, 41 Fed. Rep. 620. 3 U. S. Rev. St., § 737.

rily appearing to answer; and non-joinder of parties who are not inhabitants of nor found within the district as aforesaid shall not constitute matter of abatement or objection to the suit." Equity Rule 47 of the United States Supreme Court also provides: "In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the absent parties." Notwithstanding these provisions the court can make no decree affecting the rights of an absent person, and none between the parties before it which so far involves and depends upon the rights of an absent person that complete and final justice cannot be done between the parties. present without affecting those rights. The objection may be taken at any time upon the hearing or in the appellate court.

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§ 59. Necessary parties illustrated. In a bill to enjoin a city from paying its officers, both the city and the officers' are necessary parties." On a bill to set aside a transfer of

1 Wall v. Thomas, 41 Fed. Rep. 620, 621; Gregory v. Swift, 39 Fed. Rep. 708; Conolly v. Wells, 33 Fed. Rep. 205; Gregory v. Stetson, 133 U. S. 579, 587. The statute is only a legislative affirmance of the rule previously established by decisions, and does not warrant a decree in the absence of indispensable parties. Shields v. Barrow, 17 How. 130.

2 Coiron v. Millandon, 19 How. 113. See, also, Herndon v. Ridgway, 17 How. 424. In an action against a corporation and its officers, in which relief is sought against the corporation and discovery from the officers, the latter are not merely nominal parties. Doyle v. San Diego Land & Town Co., 43 Fed. Rep. 349.

3 Although the city assumed the defense of the case through its attorney, so long as it did not appear on the record, no decree could be passed in the cause. Samis v. King, 40 Conn. 300; citing Allen v. Turner, 11 Gray, 436, where a town was held to be a necessary party to a bill to restrain its treasurer from paying out money voted at legal meetings for illegal purposes.

4 Butcher v. Camden, 29 N. J. Eq. 478; Bingham v. Camden, 29 N. J. Eq. 469.

5 A stockholder applied for an injunction to prevent the execution of a contract between connecting railroads for the division of earnings on freight and passengers carried over

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property alleged to have been obtained by duress, persons in whose favor certain charges on the lands thereby conveyed were made are necessary parties. Depositors cannot proceed against the directors of a savings bank for losses occasioned by their neglect and misconduct without making the corporation a party. Where heirs-at-law claim a fund in court on the ground that it is to be treated as real estate, the administrator of the ancestor through whom they claim is a necessary party to the procedure. Where a landlord seized crops liable to a factor's lien, in an action by the latter for an accounting the lessees are necessary parties. In a suit by stockholders of a railroad company to prevent a trust company, to whom a mortgage on the road has been given, from delivering some of the bonds secured by the mortgage, and to have such bonds canceled, the trust company is a necessary party to the controversy. When a bill seeks to enforce a vendor's lien for the unpaid purchase-money of land, which was sold for distribution among the heirs of the deceased owner under a decree of the probate court, all the persons in whom the legal title was vested are necessary parties. To a suit brought by a judgment debtor seeking to have another judgment set off against the judgment against him, attorneys of the judgment creditor who claim an interest in the judgment are entitled to be made parties. On a bill to recover possession of real estate, the heirs of a deceased claimant are necessary parties. Equity will not decree the surrender for cancellation of an instrument against one who only holds it as bailee or depositary unless the real owner of it is joined as defendant. To a suit to subject, under an attachment, an insuch road, making only the company Paige, 222; Porter v. Sabin, 36 Fed. of which he was a stockholder a de- Rep. 475. fendant. It was held that the other company was a necessary party. Elkins v. Camden & Atlantic R. Co., 36 N. J. Eq. 241.

63.

4

3 Cox v. Roome, 36 N. J. Eq. 317. Saloy v. Bloch, 136 U. S. 338; s. C., 10 S. C. Rep. 996.

5 Mayor v. Denver &c. R. Co., 41

1 Probasco v. Probasco, 30 N. J. Eq. Fed. Rep. 723.

2 Chester v. Halliard, 36 N. J. Eq. 313. See, also, Deerfield v. Nims, 110 Mass. 115; Lyman v. Bonney, 101 Mass. 562; Cunningham v. Pell, 5 Paige, 607; Robinson v. Smith, 3

6 Gardner v. Kelso, 80 Ala. 497.

7 Candle v. Rice, 62 Ga. 215; s. C., 3 S. E. Rep. 7.

8 Theurer v. Brogan, 41 Ark. 88. 9 Edwards v. Brightly (Pa.), 12 Atl. Rep. 91.