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Sauer v. Newhouse,

decided by Forman, D.J., on September 23, 1938.

Some of the directors of a corporation as defendants in stockholders' representative suit for restitution for losses caused by alleged mismanagement and dissipation of assets are not entitled to order that other persons be joined as defendants. Stockholders have not seen fit to bring such persons into action and ask for damages against th em either in their official or personal capacity.

Only purpose of joining them as defendants would be avoid ance of possible suit for contribution against them by present defendim ants in event of rendition of judgment against such defendants. Denial of defendants' motion that such person s be joined as defendants cannot prejudice such possibility. So long as stockholders refuse to make any claim against them, "it remains an ideal gesture to order them to appear."

Complete relief can be afforded stockholders a gainst present defendants without addition of such persons. Hence, they are not necessary or indispensable parties,

Joinder is not required by Rule 19 (b) of Rules of Civil Procedure providing, in part, that when persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties * * * the court shall order them summoned to appear in the action."

Rule docs not compel joinder of omitted parties where complcte relief, as in instance case, can be given as between present parties. It does not require that other person s be joined as defendants in order that complete relief may be given as between such person and present defendants.

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John Hancock Mutual Ins. Co. v. Kegan et al, 22 F. Supp. 326, 331,

decided by Chesnut, D.J., on February 16, 1938.

R In the comment by the Advisory Committee to the Supreme Court on Rule 22 (1937 draft of the proposed new rules) it was said:

The first paragraph provides both for strick inter-
pleader and for actions in the nature of interpleader under
the former equity practice. *** This paragraph re-states
the better practice on interpleader; as developed by judicial

" While this new rule affecting federal equity and law practice is not presently in existence, it very clearly indicates that the existence of some interest of the plaintiff in an interpleader case falls within the field of legal practice and procedure rather than substantive law, and tends strongly to support the

th at the existence of the interest should not be an ab som lute bar to the maintenance of the suit. It also indicates that the interest of the plaintiff does not of itself entitle the defendants to a jury trial. See Henri etta Mills v. Ruther ford County, 281 U, S, 121, 127, 50 S. Ct, 270, 272, 74 L. Ed. 737; Matthews v. Rodgers, 284 U. S. 521, 529, 52 S. Ct. 217, 221, 76 L. Ed. 447."

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On objections to interrogatories served on adverse party in a patent suit. Held, Rule 33 should be liberally construed, Evidentiary, as well as ultimate facts, may be demanded by interrogatories,

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"There is no reason to grant an unlimited right to discovery by deposition on the one hand and restrict discovery under Rule 33 on the other hand. Rule, so construed, permits discovery as to evidentiary facts, as to facts relating to adversary's case, and as to identity and location of persons having knowledge of relevant facts. Rule that discovery could be obtained only of mazers exclusively or peculiarly within knowledge or control of adverse party has likewise been changed.

"It is perfectly apparent that Rules 26 to 37, inclusive, of the Rules of Civil Procedure relating to depositions, discovery, depositions on oral examination and written interrogatories, interrogatories to parties, discovery and production of documents and things for inspection, copying, or photographing, and the admission of facts and genuineness of documents were formulated with the intention of granting the widest latitude in ascertaining before trial facts concerning the real issues in dispute, and permitting interrogatories to parties in connection with any relevant matter in order to make available the facts pertinent to the issues to be decided at the trial and eliminate all expense and difficulty that would be involved in their production at the trial.

"They were formulated with a view to simplifying the issues. With this same purpose in view the provisions as to pre-trial procedure (Rule 16 ) were adopted enabling courts to call the parties before them and cut away, by a greement and admissions of parties, all encumbrances to a speedy trial on simplified issues. * * *

"To keep in step with the purpose and spirit underlying the adoption of the se rules it is better that liberality rather than restriction of interpretation be the guiding principle. This will avoid the confusion and complexities which have resulted as a result of the diversified interpretations of Equity Rule 58 by the courts."

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