RULE 20. PERMISSIVE JOINDER OF PARTIES.

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.

RULE 21. MISJOINDER AND NON-JOINDER OF PARTIES. Misjoinder of parties is not ground for dismissal of an action. Parties. may be dropped. or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

A detailed study of parties under modern procedure requires a knowledge of the way in which courts of equity have dealt with interpleader and bills of peace with multiple parties, a matter considered in courses on Equity.

In certain cases controversies may arise between one person and a class of persons having a common interest or between two classes of such persons. Typical instances are suits by or against unincorporated associations such as clubs or trade unions and suits by the stockholders of a corporation. In such cases the common law was helpless, but equity would sometimes allow a representative suit by or against certain named members of the class who sued for or defended for all. This practice has been retained in modern unified procedure.

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 23. CLASS ACTIONS.

(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;

(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or

(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.1 . . .

The subject of class or representative suits is considered in courses on Equity.

Under certain circumstances equity allowed a third person, ordinarily one who might have been but was not made a party to a pending suit, to intervene in the suit to protect his interests. Sometimes the intervener was a third person who was not represented in the litigation and would not be bound by the decree; sometimes he was a member of a class against or on behalf of which a representative suit was brought. There is a considerable amount of case law as to when intervention in an equity suit will be permitted and by whom.2. Modern unified procedure has frequently made intervention available in all actions under proper circumstances.3

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 24. INTERVENTION.

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2)

1 Rule 23(b) prescribes special rules for secondary actions by shareholders in corporations or incorporated associations. Rule 23 (c) provides, inter alia, that: "A class action shall not be dismissed or compromised without the approval of the court."

2 See 1 Whitehouse, Equity Practice (1915) §211; Note, 31 Col. L. Rev. 1312 (1931) (federal practice).

3 See Note, 43 Yale L. J. 127 (1933).

when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."

2

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in the Act of August 24, 1937, c. 754, § 1.3

Finally, modern procedure allows a defendant, or under some circumstances, a plaintiff in an action to bring in a third person as a party after the action has been begun where it would not have been possible to do so at common law. Suppose, for example, that an action is brought against a master for a tort committed by his servant in the scope of the latter's employment. If the plaintiff recovers from the master, the master has a claim for reimbursement against the servant. It may well be convenient to settle the whole matter in one action by allowing the master to bring in the servant as a third-party defendant. If the liability for the tort were asserted by way of counterclaim, the plaintiff in the original action might well

1 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 30, proposes to insert "or subject to the control of or disposition by."

2 Second Preliminary Draft, supra, 30, proposes to insert: "And whenever a party to an action relies for ground of claim or defense upon any statute or executive order, administered by a federal or state governmental agency, or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the agency upon timely application may be permitted to intervene in the action."

3 As to the situation sought to be met by this statute, see Simpson, "Fifty Years of American Equity," 50 Harv. L. Rev. 171, 236-241 (1936).

4 This matter, as a problem of substantive law, is considered in the course on Agency.

wish to bring in a third party in the same way. These situations and others are met by the so-called "third-party practice" of the new Federal Rules and of some state statutes.1

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 14. THIRD-PARTY PRACTICE.

(a) When Defendant May Bring in Third Party. Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a thirdparty plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses as provided in Rule 122 and his counterclaims and cross-claims against the plaintiff, the third-party plaintiff, or any other party as provided in Rule 13.3 The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff. The plaintiff may amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.

(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.*

1 See Notes to the Rules of Civil Procedure for the District Courts of the United States (1938) 15: "Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the federal admiralty courts, and in some American state jurisdictions." See also Cohen, "Impleader: Enforcement of Defendants' Rights against Third Parties," 33 Col. L. Rev. 1147 (1933); Gregory, "Third Party Practice under the New Illinois Practice Act and Chicago Municipal Court Rules," 1 U. Chi. L. Rev. 536 (1934). .

2 See pp. 212-214, supra. 3 See pp. 275-276, supra.

♦ Extensive amendments to Rule 14 are proposed in Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 19-23. The principal change proposed is

These various matters with regard to parties form part of the appropriate subject-matter for an advanced course on Practice, and will not be further dealt with in this book.

SECTION 3

DISCOVERY AND PRE-TRIAL PROCEDURE

We have already considered the difficulties encountered by a party to an action at common law who wished to secure testimony or documents from the other party for use in the litigation and the way in which these were partially met by allowing bills for discovery in equity in aid of actions at law. Beginning with the New York Code of Procedure of 1848, statutes in many states have sought to provide a simpler means of getting discovery in actions at law or formerly at law. Moreover, in states having separate procedure at law and in equity, there has been a tendency to substitute discovery in equity by written interrogatories independent of the pleadings for the old system of discovery by answer and cross-bill for discovery. This latter development we have already considered.1

The statutory provisions for discovery in actions at law or in all code actions are of three main sorts: (1) Some statutes, following the lead of the New York Code of Procedure, provide for the oral examination of each party by the other before trial. (2) Others, patterned on the modern equity practice, provide for such examination on written interrogatories. Many states provide for both methods of discovery.1 (3) In all of the states there is some method of requiring the production by the other party to an action or suit of documents in his possession relating to the litigation. In this section we shall consider briefly some of the problems raised by these methods of securing interlocutory discovery, and also modern methods of simplifying the issues in advance of trial in other ways.

the elimination of impleader of persons who are or may be liable to the plaintiff. See Satink v. Holland Township, 31 F. Supp. 229 (D. N. J. 1940), noted in 88 U. Pa. L. Rev. 751 (1940); Delano v. Ives, 40 F. Supp. 672 (E. D. Pa. 1941); Holtzoff, "Some Problems under Federal Third-Party Practice," 3 La. L. Rev. 408, 419-420 (1941).

1 See pp. 621, 628, supra.

2 See Millar, "Notabilia of American Civil Procedure 1887-1937," 50 Harv. L. Rev. 1017, 1042-1045 (1937); Simpson, “A Possible Solution of the Pleading Problem," 53 Harv. L. Rev. 169, 190-191 (1939); Ragland, Discovery before Trial (1932) 25-26.