In this case the only question is as to parties, and we are called upon to meet it at the threshold. The objection of the want of parties may be taken at any time 'in the progress of a cause, and even in the appellate court. The objection will be disregarded whenever taken, if it appears that the parties are not necessary, or if, although convenient and under some circumstances necessary, they can not be made without depriving the court of jurisdiction. On the other hand, when it appears that no final decree can be made without material prejudice to the interests of parties not before the court; the court will not proceed without them, even though such parties are beyond the reaen of its process, or can not be made without ousting the jurisdiction. These are general rules, and they apply to courts of the United States as fully as to the courts of the states. In administering these rules, however, the courts of the United States are always careful to see that no citizen of a state, other than that in which the defendants reside, shall invoke their jurisdiction in vain, unless it is obviously impossible to protect the interest of the absent parties in their decrees. The only question here, is whether there is any such obvious impossibility in this case. It is objected, in the first place, that the partners of the defendant, McBurney, are indispensable parties. But it is plain upon the bill and answer that in all the transactions which form the subject of litigation, Mr. McBurney represented the firm, and we perceive no good reason why he may not be held to represent them in this suit. Most of these partners can come in and become parties to the bill, if they desire to do so. If they do not, it will be because they think their interests already adequately represented.
The court will not regard the absence of parties where interests are competently represented as an obstacle to doing justice by a decree between the parties actually before it.
The other objection is, that Elias N. Ball, though named as a party in the bill, has not been served with process. It is the snmeobjeetion as the others, namely, want of an indispensable party. This gentleman, it seems, bought the property in litigation of the executors of Wm. A. Carson. He gave his bond, secured by mortgage upon the property, for the purchase money; subsequently, dur*188ing the war, he sold to McBurney, and by arrangement between himself, McBurney, and the executors, McBurney paid the amount due the executors upon the bond in Confederate notes, and they thereupon surrendered the bond and discharged the mortgages. Subsequently ¡ and since the war, Ball, it seems, has gone into bankruptcy.' Under these circumstances we do not perceive that Ball is a necessary party. It does not appear that either he or his assignee in bankruptcy have any interests which will be prejudiced by a decree. At all events, as it seems to us, a decree may be made so as to ■do complete justice between parties before the court, and at the same time protect any rights which he or his assignee may appear to have. We can not regard him, therefore, as a necessary party.
[NOTE. Defendant appealed to the supreme court, which reversed the decree of the circuit court, assigning as grounds for such reversal (Mr. Justice Swayne delivering the opinion) that (£> X. Ball was a necessary and indispensable parry, and should have been brought in, inasmuch as the bill failed to aver his insolvency, or to show any reason why he should not or could not be brought before the court, and also because W. J. Ball, his surety, had objected to his absence, and alleged that he represented the debt to be paid, and therefore was entitled to have him present to assist in maintaining this defense, or, in the event of failure of the defense, to assist in taking an account that the decree might conclusively fix the liability of E. X. to W. J., should the latter be compelled to pay the debt. Furthermore, the court held that as the bill charged fraud and conspiracy, and that E. X. was a party thereto, his vendees were entitled to his aid to make their defense; and the court further assigned as a ground for reversal that Gillespie, as one of the grantees of E. N. Ball, who had not, so far as it appeared, parted with the legal title acquired by him, was an indispensable party to the determination of the case. Robertson v. Carson, 10 Wall. (80 U. S.) 94.]We do not express this opinion without some hesitation, but our best judgment is, that it will receive the highest sanction, should the case go to the supreme court.
Whether this be so or not, it would be a positive wrong in this court to turn from its doors a suitor from another state seeking a remedy against citizens in this state, and thus deny to her a right secured by the constitution, upon a doubtful question in reference to parties. We would follow rather the example of Judge Story, that great light of equity jurisprudence, and strain a point in favor of the constitutional right of citizens of the several states to sue the citizens of other states in the courts of the United States. It is a right too clear and too important to be lightly disregarded.
We shall therefore overrule the objection on account of want of parties, and continue the case for answer. It is no small satisfaction to know that any error we may now fall into will be corrected by a higher court.