Mudgett v. Gager , 52 Me. 541 ( 1864 )

The opinion of the Court was drawn by

Barrows, J.

This bill seeks an adjustment of the accounts between the part owners of the brig Caroline E. Kelley. Isaac B. Gager, one of the defendants, whose property is attached, demurs to the bill for want of proper parties, because Howes & Crowell of Boston, Mass., also part owners, have not been summoned as parties, and do not appear. The bill contains no allegation that Howes & Crowell have received their share of the earnings of the vessel. It may be that they are creditors to such an amount as might seriously affect the decree to be made in this case. It is not easy to see how, in the present condition of the bill, any decree could be made which would be certain to do justice among the remaining part owners, or constitute a final adjustment of their affairs.

How can it be ascertained what just claim any one of the part owners may have against any one or more of the others without making parties of all those members of the concern who may be supposed to have claims against it?

Howes & Crowell being out of the jurisdiction, if it appeared not only that their interests would not be prejudiced by the decree, but also that they were not necessary to the just ascertainment of the merits of the case before the Court, they might be dispensed with.

In Towle v. Pierce, 12 Met., 329, cited for the plaintiff, Wilde, J., in overruling the demurrer, remarks, "the.bill avers that all the absent partners have received their full share of the partnership effects ; and, if so, they cannot be prejudiced by any decree which may be obtained in the present case.”

The doctrine of our own Court, in Fuller v. Benjamin, 23 Maine, 255, is applicable to the present case, and the consequence is that the demurrer must be allowed, and the bill dismissed unless the plaintiff obtains leave to amend at Pfisi Prius, or the defect of parties is cured by the appearance of the other part owners.

Appleton, C. J., Davis, Walton and Dickerson, JJ., concurred.