answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require." 13 Where evidence is required to prove that a defect in parties exists the court will ordinarily not determine the question until after a hearing upon all the issues in the case.14 An objection to the whole bill for want of parties will be overruled if, in any aspect of the bill, the parties therein named would not be necessary; 15 but only so much of the relief prayed will be granted as cannot injuriously affect those who are omitted.16 Where a defendant in a suit in equity for the infringement of a patent made objection for the first time at the argument upon final hearing, that there was a defect of parties, because a person holding an equitable title to the patent was not a party; and it appeared that no such issue was made by the pleadings, and that during the taking of the testimony the defendant's counsel admitted that the title to the patent was in the complainant; it was held that the objection was made too late and it was overruled.17 The usual practice is for the court, if it considers the objection good, to allow the cause to stand over until the plaintiff shall amend his bill by bringing in the additional parties needed.18 This may be done upon appeal.19

By the former practice, after a plea for want of parties had

13 Eq. Rule 43; copied in part from Eq. Rule 52, of 1842.

14 Bogert v. Southern Pacific Co., 211 Fed. 776.

15 Homan v. Shiel, 2 Jones 164; Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co. C. C. A., 250 Fed. 160, 171. 16 Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160,

17 California El. Works v. Finck, 47 Fed. 583. See also Hills v. Putnam, 152 Mass. 123.

18 Hunt v. Wickliffe, 2 Pet. 2d. 215, 7 L. ed. 397, 402.

19 Brown v. Fletcher, C. C. A., 231 Fed. 491.

been sustained and the bill amended by adding thereto the parties named in the plea, a second plea further objecting to the bill for the omission of other parties not named in the first plea could not be filed.20 If the omitted parties on account of their citizenship cannot be brought in, the court may retain the bill, and perhaps continue an injunction in accordance with its prayer until the complainants have had a reasonable time to litigate the matters in controversy between themselves and the omitted parties in a court of competent jurisdiction; and if it should then appear by the judgment of such a court that the complainants have in equity a superior title to the omitted parties, proceed to a determination of the rights between the parties to the bill. If, however, the complainant does not within a reasonable time amend his bill, or, if so allowed by the court, proceed against the omitted parties, the court may dismiss his bill; but such dismissal must be without prejudice.22

A lack of proper parties is not a jurisdictional defect.23 It will not support an objection to the jurisdiction, that may be certified to the Supreme Court; 24 and if, pending the decision upon an objection for the omission of a party whose presence would oust the District Court of jurisdiction, he dies, or his interest ceases, and the defect is thereby cured, the bill will be retained.25 It was held, where a defendant had removed a case, that he could not object to the absence of a party whose joinder would deprive the Federal court of jurisdiction.26 A dismissal for want of proper parties should be without prejudice.27

20 Rawlins v. Dalton, 3 Y. & Coll. 447.

21 Mallow v. Hinde, 12 Wheat. 193, 198, 199, 6 L. ed. 599, 600, 601.

22 Mallow v. Hinde 12 Wheat. 193, 199, 6 L. ed. 599, 601; Hunt v. Wickliffe, 2 Pet. 201, 215, 7 L. ed. 397, 402.

23 Harrison v. Rowan, 4 Wash. C. C. 202, 208; Helm v. Zarecor, 222 U. S. 32, 35, 56 L. ed. 77, 79; Hinchman v. Paterson H. R. Co., 17 N. J. Eq. 76, 86 Am. Dec. 252.

24 Helm v. Zarecor, 222 U. S. 32, 35, 56 L. ed. 77, 79.

25 Harrison v. Rowan, 4 Wash. C. C. 202, 208; Hinchman v. Paterson H. R. Co., 17 N. J. Eq. 76, 86 Am. Dec. 252.

26 Fisher v. Shropshire, 147, U. S. 133, 145, 37 L. ed. 109, 115.

27 Hayden V. Perfection Cooler

Co., 217 Fed. 171.

§ 130. Objections for joinder of improper parties. An objection that improper parties have been joined may be raised by motion to dismiss or by answer.1

If persons are improperly joined as plaintiffs, all the defendants may take the objection. If a person is joined as a plaintiff without his consent, he may on motion, or petition, upon notice to all parties, have his name stricken out, with costs to be paid by the plaintiff who has improperly brought him into the suit.3 Such relief has been granted upon petition after a decree for costs against the petitioners and the other persons named as complainants. Where several complainants with a similarity but not a community of interest had joined in a bill, and the presence of some of them deprived the Federal court of jurisdiction, the one which had the right to sue the defendants there was allowed to amend the bill so as to make the other complainants additional defendants." Where one of several complainants whose interest is opposed to the others, attempts to delay, harass, or impede the orderly progress of the cause, the court may order that he be made a defendant. 6

If a person having no interest in the controversy be improperly joined as defendant, he alone can raise the objection; 7 except, perhaps, when the bill is multifarious, or he was joined through collusion in order to make out a case of difference of citizenship; and no notice of his objection need be given to

$130. 1Eq. Rule 29.

2 Cuff v. Platell, 4 Russ. 242. King of Spain v. Machado, 4 Russ. 225; Story's Eq. Pl., § 544.

3 Calvert on Parties (2d ed.), 430; Keppell v. Bailey, 2 M. & K. 517; Titterton v. Osborne, 1 Dickens, 350; Wilson v. Wilson, 1 J. & W. 459. It was held that a motion to dismiss the bill upon that ground should be denied. Southern Life Ins. Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448.

4 McGeorge v. Bigstone Gap Imp. Co., 86 Fed. 599.

5 Insurance Co. of N. A. v. Svend

sen, 74 Fed. 346. See Aylwus v.

Bray, 2 Y. & Jer. 518, note.

6 Lalance & G. Mfg. Co. v. Haberman Mfg. Co. 93 Fed. 197, 199. As to the change of a defendant to a plaintiff, see Guinn v. Lee, 6 Pa. Super. Ct. 646.

7 Whitbeck v. Edgar, 2 Barb, Ch. (N. Y.) 106; Seymour v. Freer, 8 Wall. 202, 218; Buerk v. Imhaeuser, 8 Fed. 457; Mitzhener v. Robins (Miss.) 19 S. R. 103.

8 Cherry v. Monro, 2 Barb. Ch. 618; infra, § 141. But see Missouri Broom Mfg. Co. et al. v. Guymon, 115 Fed. 112.

9 Helm v. Zarecor, 222 U. S. 32, 35, 56 L. ed. 77, 79.

the other defendants, except in special cases, where it is clearly for the latter's interest to detain him in the suit.10

If a misjoinder is apparent on the face of the bill, it is more prudent to raise the objection specifically by motion or answer, stating the names of the parties improperly joined. If the objection is not made until the hearing, the court may disregard it.12 It cannot be raised for the first time upon appeal.13 When an objection that defendants have been improperly joined, as having no interest in the controversy, has been sustained, the plaintiff will always be allowed to amend by striking out their names.14 In such a case, the dismissal does not affect the suit as against the remaining defendants.15 Where a defendant is not an indispensable party, a dismissal as to him upon any ground does not necessitate a dismissal as to other defendants properly before the court.16 If a bill is dismissed for a misjoinder of complainants and one of them appears to have a good cause for equitable relief, the dismissal must be without prejudice.17 The subject of misjoinder is discussed in the next chapter under the head of "Multifariousness.'' 18

10 Anon., 9 Ves. 512; Hodson v. Ball, 11 Simons, 459; Calvert on Parties (2d. ed.), 430.

11 Helm v. Zarecor, 222 U. S. 32, 35, 56 L. ed. 77, 79.

12 Story v. Livingston, 13 Pet. 359, 10 L. ed. 200; Eades v. Harris, 1 Y. & C. N. R. 235; Raffety v. King, 1 Keen, 601; Mosley v. Taylor, cited in 1 Keen. 601; s. c., 2 Y. & J. 520; Calvert on Parties (2d ed.), 156; Story's Eq. Pl., § 544.

13 Livingston v. Woodworth, 15 How. 546, 14 L. ed. 809; Hayes v.

CHAPTER V.

INFORMATIONS AND BILLS IN EQUITY.

§ 131. Informations and bills by the United States. The first proceeding in a suit in equity is the preparation and filing of the first pleading. The suit is begun when the complainant's first pleading is filed. This was either an information, a bill, or an information and bill.

Formerly in England the attorney-general or solicitor-general could file an information on behalf of the crown, or of those who either as idiots and lunatics partook of its prerogative, or whose rights, as those in charities, were under its particular protection. The law officers of the royal consort had the same right. If the suit did not immediately concern the rights of the crown, a relator, who sustained and directed the litigation, who it seems might prevent the discontinuance of the suit by the Attorney-General without his consent, and who was responsible for the costs, was usually, joined with the officer in whose name it was filed.

The main distinction between an information and a bill was that, whereas the latter was in the form of a petition to the court, in the former the officer that filed it stated the case by way not of petition or complaint, but of information to the court of the rights which the crown claimed on behalf of itself or others, and of the invasion or detention of those rights for which the suit is instituted. If the relator had a personal interest in the relief sought, his personal complaint was joined to and incorporated with the information given to the court by the officer of the crown; and the pleading was termed an information and bill. The proceedings upon an information

§ 131. 1 Farmers' L. & Tr. Co. v. Lake Street El. R. R. Co., 177 U. S. 51, 44 L. ed. 667; Humane Bit Co. v. Barnet, 117 Fed. 316. Se supra, § 52.

2 Mitford's Pl., ch. 1; Story's Eq.

Pl., 8; People v. North San Fran cisco Ass'n 38 Cal. 564; AttorneyGeneral v. Delaware & H. R. Co., 27 N. J. Eq. 1; s. c., 27 N. J. Eq. 631; Newark Aqueduct Board v. Parson, 45 N. J. Eq. 394.