Fleming v. Mershon , 36 Iowa 413 ( 1873 )

Miller J.

— I. The first question presented by the record and arguments in this case is one of practice, viz.: Oan persons not named as parties in the pleadings bring the case to this court by appeal? In The State ex rel. Alderson v. Jones, 11 Iowa, 11, it is held that an appeal from an order of the district court can be taken only by a party to the action in which such order is made. In that case one Moore claimed that he had asked leave of the court to file an affidavit and motion affecting the proceedings in the case, which the court refused to allow him to do, and that he excepted. From this ruling he appealed. This court, after finding that the record failed to sustain appellant’s claim, say: “ But admitting that the record as claimed by appellant is true and properly here, we cannot consider that there was any ruling of the court below from which Moore could appeal. Moore was not a party to this proceeding either as plaintiff or defendant. Nor had he ever asked to be made a party thereto. If he had such an interest in the result of the proceedings as would justify him in moving to set aside the order of the court, he should have asked leave to have had himself substituted as plaintiff or defendant; until he was thus made a party he was in no manner liable for costs, nor could he interfere with the rights of tho original parties.” That case arose under the Code of 1851, but the Revision of 1860, like the Code of 1851, makes provision for taking appeals by parties only, it permits any one of several co-parties to appeal and provides the manner of bringing in the other co-parties, so as to join in the appeal, or failing to do so, are deprived of any of the benefits thereof. §§ 3517, 3518, 3519.

In this ease the name of none of the appellants, except that of Skiff, appears in the proceedings in the court below, and his name appears, not as a party but as a person for whose use the plaintiff — the party of record- — -sues. This in no sense makes Skiff a party. These words, “for the use of Skiff and others,” will be regarded as surplusage. The State v. Butterfield, 2 Iowa, 158; Scott, for the use, etc., v. Granger, 3 id. 447. And even if this were not so, and admitting that the plaintiff might properly bring an action in his own name and for the use of others, whether named or not, an appeal should be' prosecuted in his name, for he is the party of record. As where; an action is brought by a guardian or next friend of an infant,, an appeal should be taken by and in the name of the guardian or next friend, and not by the infant in his own name.

Again, except as to Skiff, there is nothing in the record to show that the persons appealing are those for whose use plaintiff sues. In order to be entitled to appeal, they should have come in and been made parties in the court below. They cannot become such for the first time in this court. Borgolthaus v. Farmers & Merch. Bk., ante, 250.

II. Waiving, however, the question respecting the right of appeal, we come to the principal question in the case, which is as to the right of the plaintiff Fleming to maintain an action in his own name for and in behalf of others not named to enjoin the collection of the tax voted by the electors of the township.

This right is claimed under section 2763 of the Revision, which is as follows: “ When the question is one of common or general interest to many persons, or when the parties, are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.”

Our statute has adopted the rule of courts of equity, as to parties, and the section above quoted adopts also the exceptions, which have been engrafted upon the rule in equity. The Revision (§ 2757) requires, as a general rule, that every action shall be prosecuted in the name of the real party in interest. The exceptions to this are embraced in section 2758. See Conyngham v. Smith, 16 Iowa, 471.

“ All persons having an interest in the subject-matter of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided.” § 2759. “ 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 in the action.” § 2761; Story’s Eq. Pl., chap. IV. “Persons having a united interest must be joined on the same side, either as plaintiffs or defendants. But when some who should thus be made plaintiffs refuse to join, they may be made defendants.” § 2762; Story’s Eq. Pl., chap. IV. Then follows the section first’ quoted, which is almost in the exact language in which the exceptions in equity are stated in Story’s Eq. Pl., § 97.

The general rule in equity is, that all persons materially interested in the subject-matter, or in the object of the suit, should be made parties. Story’s Eq. Pl., §§ 72, 76, 76a, 96; Culvert on Parties, 5, 6, 10, 11.

Upon this rule, courts of equity have engrafted certain exceptions, two of which are embraced in the section of the Revision first above quoted (2763). The object of a court of equity is to administer justice, “ and it will not suffer a rule founded in its own sense of propriety and convenience to become the instrument of a denial of justice to parties before the court, who are entitled to relief.” “ If the rule, requiring all persons interested to be made parties, were to apply in its strictness,” in all cases, “ this consequence would follow, that justice,” in some cases would be unattainable, because if it were necessary to put upon the record the names of all persons who are interested in the object of the suit, it might be impossible for the court to proceed to a final determination of the case. Wood v. Dummer, 3 Mason, 317; Small v. Allwood, 1 Younge, 457.

The rule, or rather the exception to the general rule, which allows the omission of parties interested in the question litigated, and the prosecution of an action by one in behalf of all others interested, was adopted therefore from necessity, to prevent a failure of justice.

Mr. Justice Story in his wort on equity pleading (§ 77), says: “All these exceptions will be found to be governed by one and the same principle, which is, that, as the object of the general rule is to accomplish the purposes of justice between all the parties in interest, and it is a rule founded, in some'Sort, upon public convenience and policy, rather than positive principles of municipal or general jurisprudence, courts of equity will not suffer it to be so applied as to defeat the purposes of justice.” See also cases cited in note 1, 7th ed.

The various examples given by Mr. Story in his treatise on equity pleading fully illustrate and establish the principle upon which the exceptions classified by him in section 97 Equity Pleading, and as they are, in our statute, are adopted, namely, from the necessity of the case, to prevent a failure of justice (Story’s Eq. Pl., § 96, and notes), hence it is that “ where the question is one of common or general interest to many persons, who, according to the general rule, ought to be made parties, yet in order to prevent a failure of justice, one or more may sue or defend for the whole; or where the parties are very numerous and it is impracticable to bring them all before the court, —parties who, by the general rule, ought to be before the court — one or more may for the same reason sue or defend for the whole.

In the case before us the plaintiff alleges that the question presented by his petition is one of common or general interest to many persons, residents and tax payers of the same township in which plaintiff resides. We think the facts alleged in the petition do not bring these tax payers within the exception. If they were less numerous, if indeed there were but two or three in number, there would be no manner of necessity of making them parties plaintiff, for each may sue alone. The reason for the exception to the general rule does not apply, hence the exception has no application. The property of each tax payer is held in severalty and the nonjoinder of the others could not be set up as a reason why the plaintiff should not be allowed to maintain the action for himself.

The case of Bouton v. The City of Brooklyn, 15 Barb. 390, was a case like the one before us, and in an able and well-considered opinion that court held that one tax payer could not sue on behalf of others subject to the same tax, basing its decision upon the principle above announced. So in the case of Cutting et al. v. Gilbert et al., 5 Blatch. 259, which was a bill in equity filed in the circuit court for the southern district of New York, by six firms licensed and doing business as bankers and brokers under the internal revenue laws of the United States, against the assessor and collector of the district, “as well for themsel/oes as all others in the same i/nterestf it was held by Mr. Justice Nelson that the plaintiffs could not maintain the action thus brought. To the same effect is the case of Armstrong v. The Treasurer of Athens Co., 10 Ohio, 235.

Ye have examined all the cases cited by counsel as well as those cited by Story in his treaties on Equity Pleading, and find no case holding that one or more tax payers may, for themselves and others chargeable with the same tax, enjoin the collection of the same on the ground of alleged illegality, nor have we been able to find any analogous case. On the contrary the cases above cited, which are the only ones found directly in point, hold that it cannot be done. The cases cited by appellants’ counsel all come within the well-recognized exceptions founded upon the principle above announced.

Again, how can it be said that all the tax payers of a township have a common or general interest in resisting the collection of a tax, voted by a majority of the electors, to aid in the construction of a railroad through the township ?

It may be affirmed with at least equal propriety that some at least, perhaps a majority, would deem it more conducive to their common or general interest to enforce the collection of the tax and secure the construction of the railroad.

To authorize the plaintiff to sue in behalf of others not named, they must have a common or general interest with him in the object of the action, in the result sought to be accomplished by the proceedings. Persons charged severally with a tax have no such common or general interest in resisting its collection as will authorize one to sue for all.

In support of the views expressed in this opinion see also the following cases: Adair v. New River Co., 11 Ves. 445; Lloyd v. Soaring, 6 id. 779; Vernon v. Backerly, 2 Atk. 145; Brinkerhoff v. Brown, 6 Johns. Ch. 139; Stevens v. Perit, 3 Metc. 474; Crease v. Babcock, 10 id. 531; Fellows v. Fellows, 4 Cow. 682; Robinson v. Smith, 3 Paige, 222; Hendricks v. Brown, 2 Johns. Ch. 283. See also Story’s Eq. Pl., ch. 4, and cases cited in notes.