As I read the complaint, it sets forth the option-contract with Coykendall, and its breach by him, only by way of inducement to show the foundation of the plaintiff's claim to an equitable interest in the bonds or stock in the hands of the defendants. The validity of that claim could not be determined in any suit not so brought as to put Coykendall in the position of a party. The majority of the court are of opinion that he retained that position after the action, as against him, had been abated by a formal judgment. It seems to me that this judgment put an end to his connection with the action. To abate an action is to end it. To abate an action as to one party, for want of jurisdiction, is to end it as to him. Coykendall could not be bound to attend further to proceedings which, as to him, the court had determined were no longer in existence. The abatement was total. It was not confined to so much of the action as might set up a right of action on the option-contract against Coykendall personally. Powell v. Fullerton, 2 B. P. 420; 2 Williams' Saunders, 210, b.
If I am right in this view of the effect of the judgment, the plaintiff was necessarily injured by it, for he could obtain no relief against the other defendants in a proceeding which, as to Coykendall, was no longer in existence. Coykendall was an indispensable party to any inquiry into the plaintiff's equity to an interest in the bonds or in the stock of the new corporation. He had therefore been properly put in the position of a party; but he ceased to occupy it, when, as to him, the action was adjudged to be ended.
I cannot concur in the opinion of the majority of the court that in legal effect this judgment referred only to a personal action against Coykendall. The complaint was an entirety. The judgment was an entirety. *Page 648
The demurrer to the complaint, subsequently filed by the other defendants, was properly sustained for the reason stated by the trial court, that the action could not be maintained against them after Coykendall had ceased to be a party. No other of the causes of demurrer assigned appear to me sufficient. I do not think that it was essential to the plaintiff's cause of action that he should state with greater particularity than he did how he became equitably entitled to share in the benefits of the purchase at the foreclosure sale. He was not seeking a specific performance of the contract. It had become impossible for Coykendall to perform it, for the bonds were no longer under his sole control. The plaintiff was pursuing an equity arising from acts and events subsequent to the breach of the contract. He did not sue as an equitable owner of bonds, but as one equitably entitled to follow the proceeds of bonds which ought to have been, but never were, his.
In this opinion HALL, J., concurred.