Smith v. Green

37 F. 424, 1889 U.S. App. LEXIS 2714

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: February 6, 1889
• Status: Published

Opinion

Nelson, J.,

{after staling the facts as above.) There is no averment in the bill that the defendants Pumphrey and Johnson, or either of them, were the agents or attorneys of the defendant Green, to whom the quitclaim deed ran, or that Green was a trustee, and held the title for their benefit, in whole or in part; and it does not appear that they have any interest whatever, or expect any, in the land conveyed, and no relief is prayed against them. The fact that fraudulent representations were made by them which influenced the complainant cannot implicate Green, unless they are shown to occupy such relation as to charge the fraud upon him. In all cases the bill must show that one who is made a party defendant is in some way liable to complainant’s demand, or has an interest in the subject of the suit. An exception .is made in the case of the agent or officer of a corporation. Mr. Pomeroy states the rule concisely, viz.:

“The general rule is well settled and admits of only one or two special exceptions which are necessary to prevent a failure of justice, that no person can properly be made a defendant in the suit for a discovery or compelled as such to disclose facts within his knowledge, unless he has an interest in the subject matter of the controversy in aid of which the discovery is asked.” 1 Pom. Eg. Juv. § 199.

In a note numerous authorities from which the rule is formulated are cited. Where an attorney or agent has assisted his principal in the accomplishment of a fraud, he may then be made a party defendant, and compelled to discover the fact, and relief must be prayed that he pay costs. He is made a party, not for the reason that every one who assists another in committing a wrong is answerable for the injury sustained by the aggrieved person, but as security for costs incurred in redressing the wrong. See 1 Daniell, Ch. Pr. 299, and cases cited in note. No such case is presented by the demurrer, and in settling the demurrer it is not necessary that defendants should answer denying the confederating clause. Demurrer sustained.