Opinion
March 7, 1906.
Henry C. Henderson and William A. Davidson, for the appellants.
Charles E. Hotchkiss and Joseph F. Collins, for the respondent.
The motion was properly denied. Section 488 of the Code of Civil Procedure provides that where there is a defect of parties appearing on the face of the complaint the defendant may demur thereto. Where such defect does not appear on the face of the complaint the objection may be taken by answer; and if such an objection is not taken either by demurrer or answer the defendant is deemed to have waived it. (Code Civ. Proc. §§ 498, 499.) Even if the objection is not taken by demurrer or answer the court must on its own motion in a proper case where a complete determination of the controversy cannot be had without the presence of other parties direct them to be brought in. (Code Civ. Proc. § 452.) "Construing sections 452 and 499 together, their meaning is that a defendant, by omitting to take the objection that there is a defect of parties by demurrer or answer, waives on his part any objection to the granting of relief on that ground, but when the granting of relief against him would prejudice the rights of others, and their rights cannot be saved by the judgment, and the controversy cannot be completely determined without their presence, the court must direct them to be made parties before proceeding to judgment." ( Osterhoudt v. Board of Supervisors of the County of Ulster, 98 N.Y. 243; Steinbach v. Prudential Ins. Co., 172 id. 476.)
Whether the parties sought by the appellants to be brought into the action were proper or necessary parties was a question to be determined by the court on the trial of the action. Such question was not properly raised by motion. The appellants pursued the proper practice in raising such question by answer, and were at liberty on the trial to litigate the issue thus raised, at which time the court would have properly disposed of the question having reference to the facts as then established. A defendant, however, cannot by motion dictate to a plaintiff whom the latter shall make defendants, thereby subjecting the plaintiff to the burden and perhaps the costs of a litigation with some third party which may possibly prove to be unsuccessful. Plaintiff has a right to select his own defendants, subject to the right of a defendant to raise the objection by demurrer, or answer that the proper parties are not before the court. Plaintiff may then, unless he prefers to bring in such parties, litigate with the defendant the question as to the propriety of the presence of such parties.
The order should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.