
    Nelson Hillier et al. v. Daniel Stewart et al.
    1. In an action on a promissory note by the holder against the maker, it is irregular and improper for the court to let in a now parly on his own motion and against the objection of the plaintiff, with leave to file an answer and cross-petition to contest the bom Jides of the plaintiff’s title to the note and to assert therein an equity of the cross-petitioner derived through the plaintiff’s assignor, who is also a necessary party to the determination of the case made in the cross-petition, tíuch relief should be sought by an original petition.
    2. When, in such action, an issue of fact is made by a reply to the cross-petition, a demurrer to the reply puts in issue the question whether the matter sot up in the answer is the proper subject of a cross-petition.
    3. On appeal to the district court from tire decree rendered in the case made by the cross-petition, the case being submitted to the court on the demurrer to the reply, it was adjudged that the facts stated in the cross-petition did not, in such action, entitle the cross-petitioner to the relief sought; whereupon the cross-petition was dismissed and cause remanded to the court of common pleas l'or trial on the issue joined between the original parties. Held: There was no error in the judgment and order of the district court, for which the cross petitioner may demand a reversal.
    Motion for leave to file a petition in error to the District Court of Athens county.
    The original action was commenced, in the Court of Common Pleas of Athens county on the 16th of September, 1870, by Daniel Stewart and others, children and heirs of one Andrew Stewart, then deceased, against R. H. Stewart and J. II. Ilorton, makers of a certain promissory note, dated January 20, 1854, for $500, payable one year after date to Daniel Stewart or order. Th'o petition, which prayed for a judgment against the defendants for the amount clue on the note, stated the plaintiff’s title substantially as follows: Daniel Stewart, payee of the note and grandfather of plaintiils, died testate, on the 20th of February, 1858. By his will, a legacy of $500 was given to the heirs of his son, Andrew Stewart, the father of plaintiffs; and the residuum of the testator’s estate was given for equal distribution among the surviving children of the testator and heirs, by families, of those who were deceased; that the executors of the will, on the — clay of July, 1858, assigned and delivered to the plaintiils the note sued on, in part payment of their share of the residuum of the estate, whereby they “became the true and lawful owners and holders of said note.” After several amendments to the original petition, the defendants answered by denying the plaintiils’ title and ownership of the note.
    Afterward, on the 31st of May, 1871, the plaintiffs in error, Nelson L. Ilillicr, Johnson M. Welch, and Joseph L. Kisscngcr, on their own motion, in the Court of Common Pleas, were made parties defendants in said action, and obtained leave to iile an answer by way of cross-petition, wherein they alleged, iu substance, that said Nelson L. Hillier was a residuary legatee under the will of Daniel Stewart, deceased; that there came into the hands of the executors, for distribution among the residuary legatees, assets of the value of $65,650, of which amount said Hillier was entitled to one-fourteenth part; that a large portion of such assets were promissory notes, which, before collection, were, by the executors, with the consent of the other residuary legatees, divided among them; that the note set out in the original petition and another note of $1,000, intended for the share of Andrew Stewart’s heirs, still remained in the ■hands of A. Q-. Brown, 'one of the executors; that John Stewart and Hiram Stewart, co-executors with Brown, who were also residuary legatees, had retained in their hands ■two-thirteenths of the assets distributable under the residuary clause of the will; that other notes and property of the estate remained in the hands of the executors unadministered; that said Hillier received nothing from the estate, but had parted with an undivided interest in his share to his co-defendants, Welch and Kissenger; that many of the legatees claiming distribution from the residuum of the estate had received advancements from the testator, and had been overpaid by the executors; that the assets in the hands of the executors were insufficient to make up the proper and ratable share of said Hillier ; that the disposition made of said assets was in fraud of the rights of said Hillier and his assignees; that the assets set apart and divided among the other legatees remained charged with the original trust, etc.
    The executors of the will of Daniel Stewart, and the ■children and representatives of the testator, were made parties to the cross-petition, which contained a prayer for an account and general relief.
    To the making of new parties and the filing of the answer and cross-petition, the plaintiffs excepted. Divers pleadings were subsequently filed in answer to the cross-petition of plaintiffs in error, upon which issues were taken by demurrers. The demurrers being sustained by the court, the equity of the case was found in fávor of the eross-petitioners, and an order of reference was entered for the purpose of taking an account, etc.
    On appeal to the District Court, the-cause was submitted on the demurrers to the answers and amended answers to the cross-petition, which had been sustained by the Court of Common Pleas ; and thereupon the District Court, being of opinion that the cross-petition did not state facts sufficient to entitle the cross-petitioners to any relief touching the matters in question in the original petition, and to constitute a ground for a cross-action in the original case, overruled the demurrers and dismissed the cross-petition. Leave to file a petition in error to reverse this judgment is now asked.
    
      He Stieger Jewett for the motion :
    The court erred in holding that the cross-petition did not state facts sufficient to entitle the cross-petitioners to any relief in the action, and in dismissing it. 1 S. & C., 621, sec. 6.
    The ease presented by the cross-petition was simply that of a cestui que trust being admitted into a suit to insist that trust funds should be applied to the trust, and the enforcement of the trust. Story’s Eq. secs. 422-424, 1257, 1258 ; 18 Wall. 332; 7 Ves. Jr. 152; 17 lb. 169; 17 Ala. 653; 43 Ind. 203; 9 Conn. 320; 4 How. (Miss.) 237; 5 Md. 219; 8 Grat. 140; 1 Ind. 471; 4 Miss. 78; 20 Ohio St. 38; 30 N. T. 388; 60 N. Y. 213.
    
      Harrison, Olds § Marsh, and Simeon Nash, contra:
    I. If the defendants in the original action were indebted to the plaintiffs in said action on the note sued on, then the plaintiffs were entitled to a judgment against the defendants. If they were not, the defendants were entitled to a judgment against the plaintiffs. In this controversy, or in this relief, the cross-petitioners had no interest, nor wei’e they necessary parties to a complete determination or settlement of the question involved in such controversy.
    If the defendants were advised that other parties than said plaintiffs were claiming the debt of them, the defendants might, if they desired, apply to the court to order that such other claimants be made parties to the suit, and maintain or relinquish their claim. The defendants were solely entitled to such order. McMahon v. Allen, 12 How. Pr. Rep. 37 ; Code, secs. 41-44; Adams’ Eq. 202; lb. 203; Vallette v. Kentucky Trust Co. Bank, 2 Handy, 12 ; Ward v. Howard, 12 Ohio St. 158; Harrison v. King, 9 Ohio St. 388; N. Y. Code, sec. 122; Judd v. Young, 7 How. Pr. 79; 9 Bosw. N. Y. 656; Kelsey v. Murray, 28 How. Pr. 243; Tollman v. Hulbester, 9 lb. 508; Dayton v. Wilkes, 5 Bosw. 655.
    The cross-petitioners in this case do not even 'make a case for intervention under the liberal statutes of California or Iowa. Horn v. Volcano Water Co., 13 Cal. 62; Stick v. Goldner, 38 Cal. 608; Taylor v. Adams, 22 Iowa, 279 ; Brown v. Saul, 4 Martin (N. S.) La. 434; 1 Louisiana, 431.
    II. The demurrer of the cross-petitioners to the réplies of the plaintiffs seai’ched the record Trott v. Sarchett, 10 Ohio St. 244 ; 1 Saund. 119 ; 5 Hobart, 56 ; 1 Harr. & Gill. 471; 1 Wash. 135 ; 7 Cow. 46; Stevens on PI. 144; 7 Ohio, pt. 1, 2.29.
    The cross-petition of the Code is,identical with the cross-bill in chancery. Mitford’s Ch. PI. (side page) 81; 3 Daniels’ Ch. PL and Pr. 1742, 1746, and authorities there cited;- Galatianv. Krwine, Hopkins’ Ch. 48 ; 1 S. & M. Ch. 376 ; 1 Yes. Jr. 284.
    On the question whether the cross-petition stated matter sufficient to constitute a right of action which could be prosecuted in an independent suit: The transfer of the promissory note was valid, even though Hillier may be one of the residuary legatees. 2 Redfield on Wills, 219 ; Guerrant v. Johnson, 4 Munf. 360; Rodgers v. Weaver, Wright, 174; 3 Redfield on Wills, 456 et seq.
    
   McIlvaine, J.

The only issue joined between the original parties to the action involved the right of the plaintiffs to collect the note sued on. For the determination of this issue, it was not necessary that the plaintiffs in error or any other person should have been made new parties- to the suit. The original defendants, the makers of the note, might have compelled an interpleader between the plaintiffs and the executors of Daniel Stewart, deceased, as to the ownership of the note, but they did not see proper to do so.

It being clear, therefore, that the plaintiffs in error were not necessary parties to a complete determination or settlement of the question involved in the original case, it remains to inquire whether they were properly admitted as parties in the case for any purpose. If they were properly made defendants, then their cross-petition must stand or fall on its merits, but if improperly made parties, then they and their cross-petition have no standing in the case.

Section 84 of the civil code provides, that “ any defendant who is properly made a defendant, may claim' in his answer, relief touching the matters in question in the petition against the plaintiff, or against other defendants in the same action.”

It is claimed that the new parties were properly let in under the rule prescribed in section 35 of the code. This section provides that “ any person.may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff', or who is a necessary party to a complete determination or settlement of the question involved therein.” We have already stated, that the plaintiffs in error can not maintain their position under the latter clause' of this section; and it is equally clear, that the original pleadings, or, in other words, the pleadings between the original parties, do not disclose any interest belonging to them in the controversy adverse to the plaintiff; nor do we find any such interest stated in their cross-petition. Assuming all the statements of the cross-petition to be true, they simply show, as to the controversy between the original parties, that the right of action on the note sued on was in the executors of Daniel Stewart, and not in the plaintiff's. The plaintiffs in the original petition claimed that- the note sued on had ceased to be of the assets of the estate, and had become their property. The plaintiffs in error claimed that the note continued to be of the assets ■of the estate, and was the property of the executors. In neither case, however, were the plaintiffs in error proper parties in an action for the recovery of the money due thereon. If the note had ceased to be of the assets of the ■estate, neither the executors nor the plaintiffs in error had ■any interest to assert in the action. If it continued to be -of the assets of the estate, the executors, and no other person, were proper parties plaintiff in an action to enforce its payment.

It may be admitted that the facts stated in the cross-petition entitled the plaintiffs in error to relief as against the executors of Daniel Stewart, deceased. It is certainly true that the executors were trustees of the residuum of the estate for the benefit of the distributees under the residuary clause of the will; and it is also true, that a breach of their trust, to the injury of Hillier as one of the distributees, gave to plaintiffs in error a cause of action against the executors ; but, it by no means followed, that such maladministration constituted a good ground of action in favor of plaintiffs in error against other residuary distributees who had received or were seeking to possess themselves of more than their share of the assets, in the absence of a showing of insolvency or fraudulent combination. But, however that may be, we find no warrant or authority, upon the facts stated in this record, for injecting the case made by the cross-petition into the original action. All the parties necessary or proper to a complete determination of the question involved in the original action were brought in at its commencement; and therefore, against the objection of the original parties, it was improper to admit into that case the plaintiffs in error as defendants for the purpose of stating, by way of cross-petition, a new case, which could not •be determined without the presence of still other parties, who claimed no interest in the subject-matter of the original action. The case made, or sought to be made by the •cross-petition should be prosecuted in an original suit. We therefore find no error in the judgment of the District ■Court for which it ought to be reversed.

Motion overruled.

Welch, C.J., White, Res, and Gilmore, JJ., concurred.  