Faber v. Faber ( 1907 )

OPINION. February 18, 1907. The opinion of the Court was delivered by (after stating the facts). The first exception is that his Honor erred in holding, that the residuary legatees not made parties, could be properly represented, as a class, by the defendant, Gerard L. Weissinger, under section 140 of the Code.

The appellant's attorneys rely upon the following authorities to show that the case under consideration does not come within the provisions of said section: Bofil v. Fisher, 3 Rich. Eq., 1; LeRoy v. Charleston, 20 S.C. 72; Moseley v. Hankinson,22 S.C. 323; DeLeon v. Barrett, 22 S.C. 413; Farr v. Gilreath, 23 S.C. 502; Covar v. Cantelou, 25 S.C. 35.

Section 140 of the Code is as follows: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; * * * 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."

The foregoing authorities unquestionably sustain the general doctrine, announced in Moseley v. Hankinson,supra, "that as far as the Courts of this State have ever gone, in dispensing with the presence of contingent remaindermen is, that where such remaindermen are not in esse, or reside abroad, and their names and residences are not known, and they cannot, therefore, be made parties, their presence may be dispensed with, and the Court may proceed to make a decree, which will bar the rights of such contingent remaindermen."

But in none of said cases were facts alleged that would bring the case within the provisions of section 140 of the Code, which was not considered. This section is discussed at length in Pom. Code Remedies, from which we quote as follows:

Section 391. "The construction of this section of the Code has been established by the Courts, and the rule is settled, as already stated, that where the question to be decided is one of common or general interest, to a number of persons, the action may be brought by or against one for all the others, even though the parties are not so numerous, that it would be impracticable to join them all as actual plaintiffs or defendants; but on the other hand, when the parties are so very numerous, that it is impracticable to bring them all into Court, one may sue or be sued for all the others, even though they have no common or general interest, in the questions at issue; and the necessary facts to bring the case within one or the other of these conditions, must be averred."

Section 392. "The parties thus represented by the plaintiff or defendant, may not be in privity with each other, but there must be some bond of connection, which unites them all with the question at issue in the action. The test would be to suppose that an action in which all the numerous persons were actually made plaintiffs or defendants, and if it could be maintained in that form, then one might sue or be sued on behalf of the others; but if such an actual joinder would be improper, then the suit by or against one as a representative, would be improper, notwithstanding the permission contained in this section of the statute."

In the case of Bofil v. Fisher, 3 Rich. Eq., 1, the Court states that "the rules of practice in this Court as to parties, are rules adopted for convenience, and are oftentimes matters of discretion."

And in the case of Smith v. Williams, 116 Mass. 510,512, it is said: "How far such persons should be made parties to the suit, depends largely upon the discretion of the Court, considering on the one hand the difficulty and expense of joining them, and on the other, the paramount importance of having such a representative of the interests concerned, as may enable the question at issue to be fairly tried."

The reason for this rule is thus stated in Smith v. Swormstedt, 16 How. (U.S.), 288, 303: "Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuations, by death or otherwise, that it would not be possible without very great inconvenience to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the Court. The legal and equitable rights and liabilities of all being before the Court by representation, and especially where the subject matter of the suit is common to all, there can be very little danger but that the interest of all will be properly protected and maintained."

We see no abuse of discretion on the part of his Honor, the Circuit Judge, in ruling that the numerous persons having contingent interests could be made parties by representation. This exception is, therefore, overruled.

These views practically dispose of all the questions involved.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.