Morgan v. Kansas Pac. Ry. Co.

Blatchford, Justice.

Benjamin W. Lewis is named in the billas a defendant. Process of subpoena is prayed against him in the bill. The bill avers that “during the several years last past the defendant Benjamin W. Lewis has duly become sole trustee under said income mortgage,” and “has been requested to bring an action for the accounting and injunction asked by the plaintiff herein, but he has fiegleeted and failed to bring such action or comply with said request, and he is, therefore, made a defendant in this action.” The answer of the Kansas Pacific Railway Company admits that “during several years last past Benjamin W. Lewis has been the sole trustee under said income mortgage, but it has no knowledge or information sufficient to form a belief as to whether or not he has been requested by complainant to bring an action for the accounting and injunction asked by complainant herein.” This raises an issue as to the request to Lewis.

Lewis, being the trustee under the mortgage, is the proper party plaintiff in a suit of this character, and some good reason must appear of record why he does not sue as plaintiff; and, in such ease, he must be made defendant. The bill recognizes this necessity, and hence make§ the averments referred to. The averment as to the request to Lewis is controverted, but it is not proved on the part of the plaintiff. It would be necessary to prove it, even though Lewis were served with process or appeared. It is not alleged in the bill that he is beyond the jurisdiction of the court, nor is that fact proved. The bill, it is true, describes Lewis as “of the city of St. Louis,” and as “a citizen of the state of Missouri.” But that is not sufficient. And even if it were shown that Lewis was not and could not he found within this district, to be served with process, there is nothing in section 737 of the Bevised Statutes which makes it proper for the court to adjudicate the suit without the presence of Lewis, because the issue as to whether Lewis refused to sue, as stated, is one on which Lewis must he heard, and under .section 737 he cannot be concluded or prejudiced by a decree rendered in his absence. The statute cannot be construed so as to convert real parties and necessary parties into no parties at all. There is, in this case, no suit to adjudicate unless Lewis be plaintiff, or unless, if he be defendant, he be served or appear. Buie 47 in equity is to the same purport. It makes it discretionary with the court to proceed, as does section 737.

For the foregoing reason, and without deciding expressly or impliedly any other question raised in the case, the only disposition that can now be made of the suit is to dismiss the bill, with costs, but without prejudico to any other suit in any court.