Kaliske v. Weil

Action against partners for specific performance of an agreement for a release, and motion to dismiss the complaint for nonservice of summons on a defendant. The order solicited is not authorized by section 821, Code Civ. Proc. Dismissal of the complaint for nonservice of summons on a defendant is warranted only “ when a complete determination of the controversy cannot be had ” without the presence of such defendant. But counsel for the motion concedes that a release by the defendants served will bind the other. What, then, is wanting to a complete determination of the controversy? Manifestly nothing. Counsel objects against the injustice of binding a party in his absence, to .which the twofold answer is : First, that the defendant not served might, nevertheless, have voluntarily appeared in protection of his rights, Waffle v. Vanderheyden, 8 Paige 45 ; Lumber Co. v. Bissell, 9 id. 225; Skinner v. Noyes, 7 Rob. (N. Y.) 228 ; and secondly, that the court on the trial will, if necessary, direct the absent defendant to be brought in. Code Civ. Proc. § 452; Powell v. Finch, 5 Duer, 666 .

Motion denied, with costs.