Bowers v. Tallmadge , 16 How. Pr. 325 ( 1858 )

Ingraham, .Justice.

The objection that there is a defect of parties is, I think, well taken. There were three defendants in the former suit, and judgment recovered against them. One of these defendants brings this action to stay proceedings on that judgment. The other defendants in the original suit are not made parties here, either plaintiffs or defendants. They are necessarily interested in the matter. If they are unwilling to join as plaintiffs, they should be made defendants. (Code, §§ 118,119 and 122.)

I think also, that an action of this kind should not be sustained. The plaintiff can have all the relief he is entitled to on motion in the original suit, more expeditiously and in a mode more consistent with the proper administration of justice. It seems to be very much out of place to bring an action to stay another action in the same court, where by a simple motion the matter can be easily heard and disposed of in the original action. Such a multiplication of actions should not be encouraged. (4 How. Pr. Rep. 350; 8 How. Pr. Rep. 416.)

Judgment for defendant on demurrer.