Herrup v. Stoneham

15 F.2d 49, 1926 U.S. App. LEXIS 2814

• Court: Court of Appeals for the Second Circuit
• Decided: October 18, 1926
• Docket: No. 19
• Status: Published

Opinion

PER CURIAM.

The facts recited show that the trustee in bankruptcy does not think plaintiff has a cause of action against him, and plaintiff agrees with the assertion. The order complained of amounts to no more than a consent order of discontinuance as to the trustee. Why or how the persons, whom the plaintiff wishes to sue and has sued, can assert a right -to keep the trustee as a defendant is hard to see.

A plaintiff can sue whom he likes at his peril; if he sues the wrong people, or too many or too few people, so much the worse for him. In this ease, if Stoneham et al. think the plaintiff’s bill fails because too few are sued — i. e., because the trustee is left out —they can advance that defense by answer (equity rule 29), and when and if final decree goes against them they can on appeal complain of the nonjoinder of the trustee.

But this consent discontinuance is wholly interlocutory; it is not a “final decision,”' within Judicial Code, § 128 (Comp. St. § 1120). To be appealable, the decision or order must be “not only final, but complete,” and final, “not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved.” Collins v. Miller, 252 U. S. 364 at page 370, 40 S. Ct. 347, 349 (64 L. Ed. 616). And cf. Stromberg v. Arnson, 239 F. 891,153 C. C. A. 19.

Appeal dismissed, with costs.