Opinion
W. C. Belcher and E. B. Mastick, for complainant.
Doyle, Barber & Scripture, for defendants.
SAWYER, J.
After a careful consideration of this very long and elaborately drawn bill I am satisfied that the demurrer must be sustained.
1. Kelly, in my judgment, is an indispensable party to the bill, without whose presence no decree can properly be made. He appears by the bill to be a partner with Donohoe in all the transactions of Donohoe of which complaint is made; and it appears that the title sought to be vacated or controlled is only nominally held by Donohoe for the benefit of the firm. No decree could finally settle the rights of Donohoe and Kelly or complainant without the presence of Kelly. Donohoe is as much entitled to have his rights finally determined in the case as the complainant. The case is, in my judgment, clearly within the principle established in Shields & Barrow, 17 How. 139; Barney v. Baltimore, 6 Wall. 280; Burke v. Flood, 6 Sawy. 220; (S.C. 1 F. 541;) by Mr. Justice FIELD in C. S. Min. Co. v. V. & G.H.W. Co. 1 Sawy. 687; and in Ribon v. Railroad Co. 16 Wall. 450. It is difficult to perceive how partnership rights can be finally determined as to anybody without the presence of all the partners.
2. The complainant sues as a stockholder of a New York corporation, on behalf of himself and all other stockholders, but does not make the corporation itself, of which he is a stockholder and through which his rights are derived, a party to the suit. The corporation in such cases is certainly an indispensable party to the suit, without the presence of which no decree finally determining the rights of any of the parties can be made.
3. The bill does not allege many of the facts essential to give the complainant the status necessary to enable him to maintain the bill, as settled in Hawes v. Oakland, 104 U.S. 450; Huntington v. Palmer, Id. 482; and Dannmeyer v. Coleman, 8 Sawy. 51; (S.C. 11 F. 97.)
As Kelly is a citizen of the same state with complainant, making him a party would doubtless oust the jurisdiction of the court, and it is doubtful whether the third point can be obviated by amendment.
Page 712.
It will, therefore, be a waste of time at present to examine the important, not to say difficult, questions raised upon the equities of the bill. There are exceptions to large portions of the bill for impertinence. Some of them, doubtless, are well taken. But the demurrer waives the exceptions.
The demurrer is sustained. The complainant may think the objections to the bill can be obviated, and leave will be given to amend on or before the rule-day in March, if he be so advised; on failure to amend within the time given, the bill will be dismissed.