Miller v. Mahaffy , 45 Iowa 289 ( 1876 )

Rothrock, J.

i. parties: confraote“to£ practice. It is urged by appellant that no decree can be rendered against him because Robert Miller is not a party to the The petition includes his name as a party defendant and prays that the assignment of the contract made by him be canceled for fraud. There is evidence tending to show that the plaintiffs and Robert Miller owned this land in common, each holding an undivided one-sixth, and that the sale made by Robert to Mahaffy and the assignment of the contract with the railroad company was not without consideration, and that a large part *of the purchase money is yet unpaid. Under these circumstances Robert Miller is a necesáary party defendant. His rights cannot be adjudicated without making him a party, and it is the right of Mahaffy to insist that, before there shall be a decree canceling the assignment of the railroad contract for fraud, both of the parties to the alleged fraud shall- be subject to the jurisdiction of the court.

There being no defect of parties apparent on the face of the petition, a demurrer for this cause would not lie. The Oode, section 2650, provides “that when any of the matters enumerated as grounds of demurrer do not appear on the face of the petition the objection may be taken by answer. If no such objection is taken it shall be deemed waived.”

It is claimed by counsel for appellee that under this provision of the statute the objection should have been made by answer. It seems to us. that an answer setting up the fact that one of the defendants named in the petition had not been served with an original notice, would be an anomaly in our practice. We believe that it was the right of the defendant to insist in the court below, and as the cause is triable anew here, to insist now that no decree shall be rendered against him until the other necessary party be brought before the court. It was incumbent upon plaintiffs to see to it that jurisdiction of Bobert Miller was obtained, and we must hold that the decree against appellant was unauthorized because of the want of such jurisdiction.

As we are thus met at the threshold with an insuperable obstacle to the further progress of the cause in this court, it is not necessary to determine whether, upon the evidence, the plaintiffs are entitled to relief. The decree will be reversed and the cause remanded for further proceedings not-inconsistent with this opinion.

Beversed.