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CHAPTER SECOND.

THE PARTIES TO THE CIVIL ACTION.

SECTION FIRST.

THE STATUTORY PROVISIONS, AND THEIR GENERAL PRINCIPLES.

§ 112. The second of the distinctive features which belong to and characterize the single civil action of the American system consists of the principles and rules adopted in respect of the parties thereto. Under the old procedure the rules which governed the parties to actions at law, and those which regulated the parties to suits in equity, stood in marked contrast with each other; in fact, the fundamental conception of these two judicial instruments was radically unlike. It will be sufficient to mention one of these essential differences. In an action at law the plaintiff must be a person in whom is vested the whole legal right or title; and, if there were more than one, they must all be equally entitled to the recovery. So far as the mere recovery is concerned, the right must dwell in them all as a unit, and the judgment must be in their favor equally. The defendants, on the other hand, must be equally subject to the common liability, so that, even if it were possible for the jury to find a separate verdict against each, the same and single judgment must be rendered against them all in a body. In other words, whatever might be the nature of the antecedent right or liability, whatever antecedent power there might be of electing to sue by one or all and against one or all, after the election is made to sue by or against all, the recovery is necessarily joint, and the burden of the remedy is necessarily joint. The suit in equity was hampered by no such arbitrary requirements. Two general and natural principles controlled its form: first, that it should be prosecuted by the party really in interest, although with him. might be joined all others who had an interest in the subjectmatter and in obtaining the relief demanded; and, secondly, that all persons whose presence is necessary to a complete determina

tion and settlement of the questions involved shall be made parties, so that in one decree their various rights, claims, interests, and liabilities, however varying in importance and extent, may be determined and adjudicated upon by the court. As the methods adopted by the chancellor did not require him to pronounce a judgment in favor of all the plaintiffs, nor indeed in favor of plaintiffs alone, and against all the defendants, nor indeed against defendants alone, it was not a matter of vital importance whether a particular person who was made a party should be a plaintiff or a defendant. It was possible to give relief to defendants as against each other or against plaintiffs. It must not be understood that no order or method was observed in the disposition of parties; but, without discussing the various rules in detail, it is sufficient for my present purpose to point out this fundamental difference in conception between legal and equitable actions. The intention plainly shown in the various State codes of procedure is to adopt the general equity theory of parties, rather than the legal theory, and to apply it to the single civil action in all cases, whatever be the nature of the primary right to be protected or of the remedy to be obtained. How far this intention has been expressed, how completely it has been carried out in the legislation of the several States, will be seen from the provisions themselves to be immediately quoted. After making these extracts and grouping them properly, I shall very briefly point out their general similarity and their special divergencies from the common type, and shall then proceed in the succeeding sections of the present chapter with a careful discussion of each separate provision. It will be seen that there is an almost complete identity in many of these statutory rules as they are expressed in the various codes, although in some of them the equitable theory has been more fully carried out into detail.

§ 113. Statutory Provisions. "Every action must be prosecuted in the name of the real party in interest except as otherwise provided in [this chapter, this article, or some designated section]; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract." The same appears slightly varied in a few States, as follows: "Every action must be prosecuted in the name of the real party in

1 Indiana, § 3; Kansas, § 26; Minne- §§ 27, 379; Nevada, § 4; Kentucky, § 30; sota, § 26; Missouri, art. 1, § 2; Wiscon- Washington, § 3; Montana, § 4. sin, ch. 122, § 12; Florida, § 62; Oregon,

interest, except as is otherwise provided in [this title or article]."' In some codes the form is that first given above, but to it is added the following clause: "But an action may be maintained by the grantee of land in the name of the grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision."2 In Nebraska the following provision is added: "The assignee of a thing in action may maintain an action thereon in his own name and behalf without the name of the assignor." 3

§ 114. "In the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence [now allowed, Ohio, Kansas, Nebraska], existing at the time of or before notice of the assignment; but this section shall not apply to [negotiable bonds, Ohio, Kansas, Nebraska] negotiable promissory notes or bills of exchange transferred in good faith and upon good consideration before due."4" When the action is brought by the assignee of a claim arising out of contract not assigned by indorsement in writing, the assignor shall be made a defendant to answer as to the assignment or his interest in the subject of the action;" and this is followed by the provision in reference to set-off or other defences contained in the last citation.5

§ 115. "An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another." 6 The same as slightly varied: "An executor, administrator,

1 Ohio, § 25; Cal. § 367; Iowa, § 2543; Neb. § 28; Wyoming, § 31; Idaho, § 4. 2 New York, § 111; Dacota, § 64; California, § 367; South Carolina, § 134; N. C. § 55.

3 Nebraska, § 28; Wyoming, § 32. 4 New York, § 112; Ohio, § 26; Kansas, § 27; Minnesota, § 27; California, § 368; Wisconsin, ch. 122, § 13; Indiana, §6; Nebraska. § 29; Florida, § 63; Kentucky, §31; South Carolina, § 135; Oregon, §§ 28, 382; Nevada, § 5; Dacota, § 65; Iowa,

§ 2546, somewhat different in form from the text. N. C. § 55: Wash. § 3; Idaho, §5; Wyoming, § 33; Mont. § 5.

5 Indiana, § 6.

6 New York, § 113; Indiana, § 4; Minnesota, § 28; California, § 369; Missouri, art. 1, § 3; Wisconsin, ch. 122, § 14; Florida, § 64; South Carolina, § 136; Oregon, § 29; Nevada, § 6; Dacota, § 66; North Carolina, § 57; Washington, § 4; Idaho, § 6; Wyoming, § 34; Montana, § 6.

trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way."1

§ 116. "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." 2 "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 questions involved therein." In a few codes the same provision appears, but added to it is the following clause: "And in an action to recover possession of real estate the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made a party plaintiff or defendant as the case may require to any such action."4

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§ 117. "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 been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint [or petition].

[And] when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." 5

Ohio, § 27; Kansas, § 28; Iowa, § 2544; Nebraska, § 30; Kentucky, § 33. 2 New York, § 117; Ohio, § 34; Indiana, § 17; Kansas, § 35; California, §§ 378, 381; Missouri, art. 1, § 4; Wisconsin, ch. 122, § 18; Iowa, § 2545; Nebraska, § 37; Florida, § 68; Kentucky, § 34; South Carolina, § 140; Oregon, § 380, but limited to equitable actions; Nevada, § 12; Dacota, § 70; N. C. § 60; Idaho, § 12; Wyoming, § 40; Montana, § 12; Washington, § 8.

3 Ohio, § 35; Indiana, § 18; Kansas, § 36; Missouri, art. 1, § 5; Wisconsin, ch. 122, § 19; Iowa, § 2547; Nebraska, § 38; Florida, § 69; Kentucky, § 35; Nevada, § 13; Oregon, § 380, limited to equitable actions; Dacota, § 71; Washington, § 8.

4 New York, § 118, California, §§ 379,

380; South Carolina, § 141; N. C. §61; Ida. § 13; Wyo. § 41; Mont. § 13.

5 This provision is thus given in one section in New York, § 119; Indiana, § 19; California, § 382; Wisconsin, ch. 122, § 20 ; Florida, § 70; S. C. § 142; N. C. § 62; Ida. § 14; Wyo. § 42; Mont. § 14; Dacota, § 72; Oregon, § 381, limited to equitable actions; Nevada, § 14, adding, however, to the section as given in the text the following clause: " Tenants in common, joint tenants, and copartners, or any number less than all, may jointly or severally bring, or defend, or continue the prosecution or defence of any action for the enforcement of the rights of such person or persons." The same provision is found in the California code,

§ 118. "Persons severally [and immediately] liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes [and indorsers and guarantors, Kansas], may all or any of them be included in the same action at the option of the plaintiff." The corresponding provision in some of the States is much more full, and more explicitly alters the common-law rules in respect to joint debtors. "Persons severally liable on the same contract, including the parties to bills of exchange and promissory notes, common orders and checks, and sureties on the same or separate instruments, may all or any of them, or the representatives of such as may have died, be sued in the same action at the plaintiff's option." " "Every person who shall have a cause of action against several parties, including parties to bills of exchange and promissory notes, and be entitled by law to a satisfaction therefor, may bring suit thereon jointly against all or as many of the persons liable as he may think proper; and an executor or administrator, or other person liable in a representative character, may be joined with others originally liable, at the option of such person." 3 "When two or more persons are [jointly, Kentucky] bound by contract [or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally, and including the parties to negotiable paper, common orders or checks, and sureties on the same or separate instruments, or by any liability growing out of the same, Iowa], the action thereon may at the plaintiff's option be brought against all or any of them. When any of those [the persons, Kentucky] so bound are dead, the action may be brought against any or all of the survivors, with any or all of the representatives of the deceased [with the representatives of any or all of the decedents, Kentucky], or against any or all of such representatives [or against the latter or any of them, Kentucky] [when all the persons so bound are dead, the action may be brought against the

In

§ 384, except that "coparceners" is sub-
stituted in place of " copartners."
the following States it is separated into
two sections corresponding to the two
paragraphs of the text: Ohio, §§ 36, 37;
Kansas, §§ 37, 38; Iowa, §§ 2548, 2549;
Nebraska, §§ 39, 40; Kentucky, §§ 36, 37;
Wash. §§ 8, 9. In Missouri, the first para-
graph only is enacted, and is art. 1, § 6.

1 New York, § 120; Kansas, § 39; Minnesota, § 35, "and sureties on the same in

strument; " Wisconsin, ch. 122, § 21; Nebraska, § 41; Florida, § 71; Ohio, § 38; Indiana, § 20; California, § 383, adding, "and sureties on the same or separate instrument," after the words "promissory notes;" S. C. § 143; N. C. § 63; Oregon, §§ 36, 382; Nevada, § 15, Ida. § 15, Wyo. § 43, and Mont. § 15, with same addition as in California; Dakota, § 73; Wash. § 10. 2 Kentucky, § 38.

3 Missouri, art. 1, § 7.

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