Booth v. Manchester Street Railway ( 1906 )

Even if it be assumed that, did justice to either of the parties require it, Gadbois might be joined as a defendant, and all issues between the plaintiff and the defendants and between the two defendants might be determined in this suit, in one or more trials, as justice and convenience required, and the results of such trials might be enforced by appropriate judgments (Owen v. Weston,63 N.H. 599), there was no error in the ruling that the court had no power to make such an order upon the facts stated.

The defendants make no claim against Gadbois except for the damages which may be recovered in this suit. By notice to him and the opportunity to defend the suit, which the defendants can give him if they desire, he will be bound as to all the facts determined in this suit `which are material to the defendants' claim against him. Boston Maine R. R. v. Brackett,71 N.H. 494. the facts so determined establish Gadbois' liability to them, the defendants need no further order. If their claim against Gadbois depends upon facts not material to the issue between the plaintiff and the present defendants, such facts could not be determined in this suit, except by a special issue and judgment in which the plaintiff would have no interest. As there would be no occasion to try this issue until the defendants' liability to the plaintiff was established, it would not in the usual course be tried until that question was decided against the defendants, and it would not generally be of any moment to the defendants whether that issue were tried in the original or in a subsequent suit. The defendants have not alleged any facts tending to establish that they would suffer injustice by being delayed in the prosecution of their claim against Gadbois, if they should have one, until they can institute a suit against him. Neither did they set up any facts in the superior court tending to show that in this particular case justice required that the two issues should be tried at the same time. If the fact that Gadbois could, while the defendants could not, prevent the consequences of their negligence renders him liable to them for all the injury which results to them therefrom, including the plaintiff's verdict, that fact, if material to the plaintiff's case and determined so as to charge Gadbois, would prevent a recovery against the defendants. If not material to the plaintiff's case, it would not be determined by any issue now in the case. If not material, there would seem to be no occasion to discuss it in the evidence. The mere statement that such a question may arise between the defendants and Gadbois is insufficient to warrant a finding that justice requires it should be determined in this suit.

As the defendants alleged no facts in support of their motion from which it could be found that justice required the granting of the motion, there was no occasion for a hearing as to the truth of the allegations.

Exception overruled.

All concurred.