and finally determine on the whole controversy and do complete justice by adjusting all the rights involved in it. As to such persons not made parties, the court may be able to make a decree, in the event of their absence from its jurisdiction; but in no such case can they be concluded as to their interest in the subject-matter. Indispensable parties, on the other hand, are those persons who have such an interest in the controversy that no final decree can be made without either affecting that interest or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good. conscience. It is improper to adjudge exclusive possession to real estate in a plaintiff who claims title by virtue of a trust, if the trustee is not made a party defendant.*

A complaint against partners, and one of them individually, is not a misjoinder, all the parties to the joint purchase being necessary parties. All the defendants in a joint action for damages are necessary, though one of them may be indemnified against loss. by the others. Those having interests in common with plaintiff' should be joined, unless they refuse, when they should be made parties defendant. The court may direct that other parties in interest be made parties.

§ 9. Parties to code actions. What has just been said of formal, necessary, and indispensable parties is of universal application. In general, these rules govern in actions at common law, as well as under the code systems of procedure. Whatever variations or modifications have been made by the codes will be noticed under the appropriate headings.

In an action at law under the old system, the plaintiff must be a person in whom is vested the whole legal right or title; and if there are more than one, they must all be equally entitled to the recovery; that is, the right must dwell in them all as a unit, and the judgment must be in their favor equally; the defendants must be equally subject to the common liability, and judgment must be rendered against them all in a body. The necessity of joining all

8 Myers v. Dorr, 13 Blatchf. 28; Fed. Cas. No. 9988.

City of Globe v. Slack (Ariz.), 95 Pac. 126.

5 Redwood City Salt Co. v. Whitney, 153 Cal. 421, 95 Pac. 885.

• Choctaw, O. & G. R. Co. v. Hamilton (Okla.), 95 Pac. 972.

7 Littleton v. Burgess, 16 Wyo. 58, 91 Pac. 832, 16 L. R. A. (N. S.),

49.

8 Hough v. Porter (Or.), 95 Pac. 732; Or. B. & C. Codes, §§ 41, 394.

as plaintiffs, in whom was vested the whole legal title, was imperative. In certain cases the plaintiff was privileged to elect whether he would sue all who were liable; but whenever judgment passed between two or more defendants, it was necessarily joint."

In suits in equity the courts were governed by two general rules: 1. That the suit should be prosecuted by the party beneficially interested, instead of by the party who had the apparent legal right, and that he might join with him all others interested in the subject-matter and in the relief demanded; 2. That all persons whose presence was necessary to a complete determination and settlement of the questions involved should be parties plaintiff or defendant, so that all their rights and interests, of whatever nature or extent, might be determined and adjusted by the court.

But courts of equity, not being restrained by the technicalities that governed the actions of courts of law, could look beyond the nominal parties to a suit to discover the real parties in interest. And the general rule requiring all parties in interest to be before the court was subject to modification, in the discretion of the court, according to circumstances, for the promotion of justice; and the fact that some of the parties in interest could not be reached by process did not preclude a decree as between parties whose rights could be completely adjusted.

These equitable doctrines have been adopted substantially by the codes of procedure of the several states, notwithstanding slight differences in minor details;1o and a court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights.11

§ 10. Cause of action necessary.-Elsewhere we have noticed the distinction between the remedy for the redress of a wrong, or the enforcement of a right, and the cause of action.12 In every suit there must be a cause of action; an obligation on the part of one person to accord to another certain rights or to recompense him for a wrong done to him. The right of the plaintiff and the obligation, duty, or wrong of the defendant combined constitute the cause of action.13 Thus when a contract, express or implied, is violated, or one is wrongfully injured in his person or property, a cause of action at once arises.

• Estee's Pl. & Pr., § 125.

10 Pomeroy's Remedies and Reme

dial Rights, §§ 196-200.

11 Cal. Code Civ. Proc., § 389.

12 Ante, § 3.

13 Veeder v. Baker, 83 N. Y. 156, 160.

The action itself springs from the obligation; it is the right or power to enforce the obligation, and we cannot conceive of a cause of action apart from the person who has the right to maintain the action.15 The obligation thus constituting the cause of action may be ex contractu or ex delicto; and again, the latter may be either for compensation or damages, or for restitution, yet in either case the action is to enforce an obligation, and there can be an action for no other purpose.16

14 Frost v. Witter, 132 Cal. 426, 84 Am. St. Rep. 53, 64 Pac. 705.

15 In this connection, Mr. Pomeroy says: "Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff and a corresponding primary duty devolving on the defendant which consisted in a breach of such primary right or duty; a reme

dial right in favor of the plaintiff and a remedial duty resting upon the defendant, springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements." Remedies and Remedial Rights, § 453.

16 See Austin's Jurisprudence, § 527.

CHAPTER III.

REAL PARTY IN INTEREST.

§ 11. Code provisions.-Under the codes of all the Pacific Coast states a defendant has the right to have an action against him prosecuted in the name of the real party in interest. In Montana, Nevada, Oregon, North Dakota, South Dakota, and Washington it is provided that such a statute shall not be deemed to authorize the assignment of a cause of action not arising out of contract. The purpose of the statute is readily discernible, but the right thus secured is limited to its purpose. It is to save a defendant against whom a judgment may be obtained from further harassment or vexation at the hands of other claimants to the same demand; to prevent a claimant from making a simulated transfer, and thus defeating any just counterclaim or set-off which the defendant would have to the demand if pressed by the real owner. Where, however, the plaintiff shows such a title that a judgment upon it satisfied by the defendant will protect him from future annoyance or loss, and where, as against the party suing, the defendant can urge any defenses he could make against the real owner, then there is an end of the defendant's concern and with it of his right to object; so far as he is interested, the action is being prosecuted by the real party in interest.2

§ 12. Who is the real party in interest. In actions upon contract under the old practice, the right of action vests in and the suit must be brought in the name of the person in whom the legal interest is vested or whose legal interest has been injuriously affected; and the legal interest is deemed to be vested in him to whom the promise was made and from whom the consideration passed. Thus, where no other person has acquired an interest in the matter in dispute only the parties to the contract sued upon should be made parties to the suit.

1 Daneri v. Gazzola, 139 Cal. 416, 73 Pac. 179.

2 Giselman v. Starr, 106 Cal. 651, 40 Pac. 8.

Estee's PL & Pr., § 131.

It very frequently happens, however, that the party in whom the legal interest is vested is not the real party in interest. Whatever may be the rule under the old system, the "real party in interest" is the party who would be benefited or injured by the judgment or the "party entitled to the avails of the suit." "Interest," within the meaning of this rule, means material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest. So a person who is not a party to a contract and for whose benefit it was not expressly made cannot maintain an action thereon, notwithstanding the contract, if performed by the parties to it, would incidentally inure to his benefit. But, on the other hand, a county interested in the payment of taxes may sue on a bond to secure such payment, although the bond runs to the territory."

The rule that the court may look beyond the record to as certain who are real parties in interest not of record, applies only to a person who voluntarily undertakes, in whole or in part, the prosecution or defense of an action between other parties in protection of his own interest or in pursuance of some obligation which he has incurred, and does not apply to one who, whatever his interest, has not in any way aided or intermeddled in the action prior to the filing of a complaint for intervention, except by procuring a dismissal from the plaintiff for the protection of his own interest.

§ 13. Assignee as real party in interest.-As already stated, the object of the requirement we are considering is to prevent the defeat of just counterclaims or set-offs. In the case of an assignment of a thing in action, this protection is secured to a defendant by code provisions to the effect that the action by the assignee is without prejudice to any set-off or other defense existing at the time of, or before, notice of the assignment. The exception is made of negotiable notes or bills of exchange, transferred in good faith and upon good consideration, before maturity.

4 Hoagland v. Van Etten, 22 Neb. 681, 35 N. W. 869; Kinsella v. Sharp, 47 Neb. 664, 66 N. W. 634.

Story v. Livingston, 13 Pet. 359, 10 L. Ed. 200; Smith v. Ford, 48 Wis. 145, 2 N. W. 150, 4 N. W. 462.

6 Chung Kee v. Davidson, 73 Cal. 522, 15 Pac. 100.

7 Curry v. Gila County, 6 Ariz. 48, 53 Pac. 4, construing Rev. Stats. Ariz., par. 680.

8 McDonald v. Cutter, 120 Cal. 44, 52 Pac. 120.

9 Cal. Code Civ. Proc., § 368; Or. B. & C. Codes, § 28.