Hilton v. Waring , 7 Wis. 492 ( 1859 )

By the Court,

Corn, J.

The objections taken to the complaint by the demurrer, are :

1. That it appears upon the face thereof that the same does not state facts sufficient to constitute a good cause of action ; and,

2. For that it appears upon the face thereof that there is a defect of parties defendant in this : it appears upon the face of the complaint that Enos Beall is a necessary party defendant.

We do not deem it necessary to say more in answer to the first objection taken to the complaint, than to remark that in our opinion the complaint does state facts sufficient to constitute a cause of action. Perhaps the complaint unnecessarily sets forth the interest which Hilton, as pledgee, has in the note of the defendants. Being the bona fide holder of that note he might undoubtedly have brought his action upon it, and recovered judgment for the amount due thereupon, regardless of any interest the pledger Beall, might have in the proceeds after the payment of the note which he had given to Hilton. But the fact that the complaint does disclose the true nature of the transaction, and that Hilton took this note as collateral security for the one which Beall had given him, by no means renders the complaint bad.

Neither can we conceive that it was necessary to make Beall a party to this action. It appears he had given a note to the appellant for $537 22, and to secure the payment of it had turned out the note upon which the suit was brought, as collateral security. What earthly necessity could there be of making him a party to this action? None whatever. He had a residuary interest in the note, to be sure, for if Hilton realized more than his debt from the security, he would be compelled to account to Beall for the overplus. But it was not necessary that he should be a party to the action to collect the amount of the respondent’s note. All the interest he had in that matter was that they should pay their note with the least unnecessary delay.

The order of the circuit court sustaining the demurrer must be reversed, and .the cause remanded to the circuit court for further proceedings according to law.