Doke v. Williams , 45 Fla. 248 ( 1903 )

Maxwell, J.

The appellants filed a bill to enjoin the defendant Williams from boxing trees for turpentine and otherwise tresspassing upon certain lands therein described. Peek-filed a petition praying to be made a party defendant to the suit, alleging therein that at the time of the filing of the bill Williams was in actual adverse possession of the lands as his sub-lessee, he, the petitioner, having been in possession and in the exercise of control and ownership thereof by virtue of a lease from third parties, the true owners of the property. This petition was granted and complainants required within ten days to amend theif hill by making Reek a party defendant thereto. From this order-the complainants appeal.

The allegations of this petition do not show that Peek had such an interest in the lands involved in this suit as to make him a proper party defendant thereto. They do not disclose his rights under the lease to himself, nor what its duration was,, nor even that it was still in force when his petition was filed; and they are equally silent ■as to the lease by himself fo Williams and his liability for any injury which might result from interference with the latter's enjoyment of the property.

But a more radical objection lies to this petition. I] seeks to compel the complainants to.make him a defendant to the suit which they have instituted against Williams. This suit is in personam to restrain Williams from trespassing upon land which they claim to own and possess. They seek no relief against Peek, and the hill as filed shows no basis for making him a party to the suit..

The general rule, subject to certain exceptions, is that a party van nof pe required to sue those against whom he does not wish to proceed, nor to state another case than that upon which he elects to rely. If he fails fo make necessary parties to the suit, or does not make necessary averments as to those against wdiom he proceeds, his suit fails; but whether lie will cure the defect by amendment rests with himself.

In the case of Carter v. Smith. 35 Fla. 169, 17 South. Rep. 411, this court held that "íbero is no practice in equity which will authorize the court, upon-the application of a person noi a party to a suit, to compel a plaintiff to make such person a co-plaintiíf,” resting its decision upon Drake v. Goodridge, 6 Blatchford, 151.

The latter case announced the doctrine quoted, and held furl her that it was equally without precedent to make one a party defendant to a suit in personam upon his ,own application, following therein the prior ruling of the same court in the case of Coleman v. Martin, 6 Blatch. 119. The. same conclusion is reached in well considered opinions by Chancellor COOPER in Stretch v. Stretch, 2 Tenn. Chan. 140, and by M’CLELLAN, J., in Ex parte Printup, 87 Ala. 148, 6 South. Rep. 418.

The Supreme Court of Mississippi, in Board of Supervisors of Attala County v. Niles, 58 Miss. 48, permitted intervention by the Board of Supervisor*» to resist an in’'.ncfion obtained against a road overseer who acted unde., die board and who refused to defend. No authority for such practice was cited and the decision of the court was placed on the ground that the public, the real party in interest, should be permitted to defend through its representative, the hoard, as otherwise the successive overseers who might he appointed by the board, willing perhaps to he so relieved of their duties, could, by tailing 1o defend, jeopardize public interests.- The ^nue court, in Whitney v. Hanover Nat. Bank, 71 Miss. 1009, 15 South. Rep. 33, S. C. 23 L. R. A. 531, in a case where only private interests were involved, without referring to the earlier case, announced the rule broadly that no such practice is known to equit.r as making a person a defendant to a suit upon His own application over the objection of-the complainant, saying that it was “fully vindicated on principle and autlna^ity.”

. To the same effect may be cited Shields v. Barrow, 17 How. 130, text 145; Searles v. Jacksonville, Pensacola & Mobile R. R. Co., 2 Woods, 621; 1 Daniell’s Chan. Pl. & Pr., 287, note 2; and Fletcher’s Eq. Pl. & Pr. section 53.

One of the objections to the practice which these cases condemn is well illustrated in the case at. bar. Peek seeks to become a party defendant to the complainants’ bill. This bill contains no reference to any fact which would connect him with the spit if he were made a party thereto. As was said by Chancellor COOPER, in Stretch v. Stretch, supra, “to make a new defendant to a bill claiming in a right not noticed by the .bill woulo throw the rules of chancery pleading into utter confusion, for it would he to try rights without any issue between the parties.”

The law does not deny a remedy to third persons having an interest in the subject-matter of litigation, but it requires that it be so sought as to perntit the rights of all parties to be duly presented to the court.- They may, in cases demanding it, file an appropriate bill, which those with adverse interests will have opportunity to resist in the regular -way. Stretch v. Stretch, supra; Ex parte Printup, supra.

.Exceptional cases where third persons may intervene by Petition are those where the beneficiaries of a trust are permitted to so intervene in a suit to which the trustee is a party, and where a person has an interest in a fund in the custody or control of the court and desires to secure its proper administration and distribution. Neither of these exceptions affects tnc present case.

The order, of the court below is reversed with directions that the petition for intervention be denied.