CHAPTER VI.

PARTIES DEFENDANT.

§ 31. At common law, all persons who were jointly liable on the same contract or obligation must be joined in an action thereon. In determining whether such liability was joint, the rule was that "several persons contracting together with the same party for one and the same act shall be regarded as jointly, and not individually or separately, liable, in the absence of any express words to show that a distinct as well as entire liability was intended to fasten on the promisors." This common-law rule has been changed in most if not in all of the states which have adopted codes of procedure. In California, the Civil Code provides that "when all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several." 2 new defendant joined does not object, and the original defendants objecting show no injury to them, such new defendants may properly be added.

3

In regard to the joinder of such parties the code provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement. of the question involved therein. And in an action to determine the title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant, and "of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have joined as plaintiff cannot be obtained, he may be made a defendant;" and persons severally liable upon the same obligation or instrument,

1 Chit. Pl. 41.

2 Civ. Code, § 1659.

3 Jordan v. Greig, 33 Colo. 360, 80 Pac. 1045.

4 Cal. Code Civ. Proc., § 379; 1 Van Santv. Pl. Eq. Pr. 74; N. Y. Code, 1877, § 447; 1 Van Santv. Pl. Eq. Pr. 119; Nash's Ohio Pl., § 36; Laws of

Iowa, § 2762; Or., B. & C. Codes, § 40;
Idaho, Rev. Codes, § 13; Nev., § 13;
Ariz., § 13.

5 Cal. Code Civ. Proc., § 382. Similar provisions are found in the codes of other states. When each of the defendants is alleged to have been in some way connected with the trans

including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff." But a necessary party defendant cannot be added after judgment without good showing of cause why he had not been made a party prior to the trial.

§ 32. Annulling patent to land. In an action to set aside a patent to land, the patentee is a necessary party defendant. His rights cannot be determined or impaired in any side suit between third parties."

§ 33. Actions against assessors. In Massachusetts, assessors are jointly, as well as severally, liable for illegally assessing and collecting a tax.

§ 34. For breach of contract.-All persons materially interested in the subject-matter of the suit should be made parties, either plaintiff or defendant. But in an action for damages. for breach of contract, only the parties to the contract should be joined as defendants.10 One merely making himself party to a contract, which is filed as a stipulation in an action, and embodied in orders made therein, does not make himself a party to the action.11 And in a suit to enforce a covenant not to carry on a certain trade, the original covenantor is not a proper party if he has parted with all interest and is not in fault.12 It is held in Massachusetts that heirs are jointly chargeable. as assigns on a covenant of their ancestor which runs with the land that descends to them.1 So with guardians severally appointed for different heirs.14 In New York, persons severally liable should not be joined in the same action as defendants.15

action complained of, and complete justice cannot be done in the absence of either of them, there is no improper joinder of parties. Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788.

6 Peck v. Peck, 33 Colo. 421, 80 Pac. 1063.

7 Boggs v. Merced Mining Co., 14 Cal. 279; approved in Yount v. Howell, 14 Cal. 469; Pioche v. Paul, 22 Cal. 111.

s Withington v. Eveleth, 7 Pick.

106.

P. P. F., Vol. I-3

13

Burton v. Lies, 21 Cal. 87; affirmed in Carpentier v. Williamson, 25 Cal. 161; Wilson v. Castro, 31 Cal. 420. 10 Barber v. Cazalis, 30 Cal. 92. 11 Elliott v. Superior Court, 144 Cal. 501, 103 Am. St. Rep. 102, 77 Pac. 1109. 12 Clements v. Welles, L. R., 1 Eq.

200.

13 Morse v. Aldrich, 1 Metc. 544. 14 Donahue v. Emery, 9 Metc. 63. 15 Le Roy v. Shaw, 2 Duer, 626; Phalen v. Dingee, 4 E. D. Smith, 379; Spencer v. Wheelock, 11 N. Y. Leg. Obs. 329.

§ 35. Unnecessary parties.-Defendants who afterwards become unnecessary parties may be eliminated by motion to dismiss as to them." Failure to substitute the true name of a defendant will not warrant a reversal of the cause, notwithstanding section 474 of the Code of Civil Procedure.17

§ 36. Objection to nonjoinder.-The objection that there is a nonjoinder of parties defendant should be raised by demurrer or answer, and cannot be raised by an objection to the introduction of testimony.18 Nor can objection to the parties plaintiff be raised by demurrer to the evidence.19

§ 37. Waiver of defects in parties defendant.-Nonjoinder of all the heirs of a deceased in an action for damages on account of death of deceased must be raised before the cause comes on for trial, or it is deemed to be waived.20

21

Defendants' failure to raise by demurrer the failure of plaintiff to join her husband with her in action for injury to her prior to her marriage, is a waiver of such nonjoinder. A general demurrer admits the sufficiency of the parties, but the defect can afterwards be raised by answer.2 But this rule does not apply in case of the omission of an indispensable party.23

22

Filing an answer after having his demurrer to the defect of parties in plaintiffs' complaint overruled, is not a waiver of such defect, if they are necessary parties.24 If the defect of parties is disclosed for the first time during trial, it can be raised by amending the answer, or possibly by motion, but not after verdict rendered.25 But if the defect is known to de

16 California Farm etc. Co. v. Schiappa-Pietra, 151 Cal. 732, 91 Pac. 593. 17 Blackburn v. Bucksport, 7 Cal. App. 649, 95 Pac. 668.

18 Dickerson v. City of Spokane, 26 Wash. 292, 66 Pac. 381.

19 Groenmiller v. Kaub, 67 Kan. 844, 73 Pac. 100.

20 Cal. Code Civ. Proc., § 434; Salman v. Rathjens, 153 Cal. 290, 92 Pac. 733.

21 Kippen v. Ollasson, 136 Cal. 640, 69 Pac. 293; Reclamation Dist. v. van Loben Sels, 145 Cal. 181, 78 Pac. 638.

22 Florence v. Helms, 136 Cal. 613, 69 Pac. 429; Town of Susanville v. Long, 144 Cal. 362, 77 Pac. 987; Medano Ditch Co. v. Adams, 29 Colo. 317, 68 Pac. 431; Johnson v. Bott, 18 Colo. App. 469, 72 Pac. 612; Grisson v. Hofins, 39 Wash. 51, 80 Pac. 1002.

23 Peck v. Peck, 33 Colo. 421, 80 Pac. 1063; Farmers' High Line etc. Co. v. White, 32 Colo. 114, 75 Pac. 415.

24 Farmers' High Line etc. Co. v. White, 32 Colo. 114, 75 Pac. 415. 25 Young v. Stickney, 46 Or. 101, 79 Pac. 345.

fendant at time of making answer and is not set out therein, it is waived.20

§ 38. Actions against executors and administrators.-In California, the executor and administrator of a decedent is entitled to the possession of the entire estate of the deceased, both real and personal. The code provides that "actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse laim thereon, and all actions founded upon contracts may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates.27 The administrator of an estate is a necessary defendant in case of a claim made to property of the estate upon a contract made by the deceased in his lifetime.28 But if suit is brought by one heir against the other heirs on such a contract the administrator is not a necessary party.29 "Any person, or his personal representatives, may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. And "in actions for or against executors or administrators it is not necessary to join those as parties to whom letters were issued, but who have not qualified." The code also contains minute provisions requiring a creditor of a deceased to present his claim against the estate to the executor or administrator of the deceased for allowance before he can maintain an action thereon. In construing these provisions of the code, it has been repeatedly held that the general right to sue an executor or administrator was taken away by statute, except in cases where the creditor's claim has been properly presented and rejected. If an executor has come into possession of the trust fund or its substitute, so that the same can be identified, he can be held

26 Criswell v. Board Everett School Dist., 34 Wash. 420, 75 Pac. 984.

27 Cal. Code Civ. Proc., § 1582. 28 In re Healy's Estate (Cal.), 66 Pac. 175; Cal. Code Civ. Proc., §§ 1597-1599, 1664.

980

32

29 Healy's Estate, 137 Cal. 474, 70 Pac. 455.

30 Cal. Code Civ. Proc., § 1584. 31 Id., § 1587.

32 Ellisen v. Halleck, 6 Cal. 393; Hentsch v. Porter, 10 Cal. 559; Eustace v. Jahns, 38 Cal. 3.

34

to account and charged as trustee, upon the same terms as his testator held the trust, and the relation of trustee and cestui que trust is added to that of executor.33 In suit for specific performance of testator's contract for sale of lands, the executor of deceased should join as plaintiff. In an action for specific performance against heirs on their ancestor's contract, where damages are demanded in the alternative, the executors or administrators should be made parties, or no judgment can be taken for such damages. 35 In Nevada, a joint action cannot be maintained against the survivor and the administrator of a deceased maker of a promissory note; and the same would seem to be the rule in California. The reason assigned for this rule is that the judgment against the survivor would have to be de bonis propriis, and against the executor or administrator de bonis testatoris.37

38

It is a general rule of law that no action will lie against an executor or administrator to which his testator or intestate was not liable. The estate, represented by a person upon whom the duty of keeping the premises in repair is cast, is no more liable for his neglect of that personal duty than it would be for a fine which might be imposed upon him by a criminal court for an assault and battery committed by him while in possession of such estate.39 In actions for the foreclosure of a mortgage, against the estate of a deceased mortgagor, his heirs are not necessary parties,40 but in partition they are, and if the execu tors of a deceased plaintiff have been made parties instead of the heirs, the error may be cured by a subsequent amendment.*1

§ 39. Foreclosure of mortgages and mechanics' liens.-In actions to foreclose mortgages, all parties who own or have an

33 Lathrop v. Bampton, 31 Cal. 17, 89 Am. Dec. 141; Fox v. Tay, 89 Cal. 339, 23 Am. St. Rep. 474, 24 Pac. 855, 26 Pac. 897.

34 Adams v. Green, 34 Barb. 176. See Cal. Code Civ. Proc., § 1582.

35 Massie's Heirs v. Donaldson, 8 Ohio, 377.

36 Maples v. Geller, 1 Nev. 233. 37 Bank of Stockton v. Howland, 42 Cal. 129; Mattison v. Childs, 5 Colo. 78. 38 2 Williams on Executors, p. 1478; Eustace v. Jahns, 38 Cal. 3.

39 Crayton v. Munger, 9 Tex. 286; Able v. Chandler, 12 Tex. 92, 62 Am. Dec. 518; Eustace v. Jahns, 38 Cal. 3.

40 Bayly v. Muehe, 65 Cal. 345, 3 Pac. 467, 4 Pac. 486. An action instituted by a party on one side for individual rights, against herself as administratrix of her husband's estate, is irregular, and should not be upheld. Norton v. Walsh, 94 Cal. 564, 29 Pac. 1109.

41 Adams v. Hopkins (Cal.), 69

Pac. 228.