Huber

If we regard the objection to the complaint, on the ground that the Kochs are not made parties, as falling within the provisions of the fortieth section of the Practice Act, in relation to grounds of demurrer, we should be compelled to hold that it was waived by the abandonment of the demurrer. But we do not regard the objection as constituting a ground of demurrer merely. It goes to the power of the court to grant any relief in the absence of the Kochs, and falls directly within the provisions of the seventeenth section, which provides that when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. Courts will not require equity at the hands of a party without, at the same time, taking care that he shall also receive equity. Hence, if complete equity cannot be done to all the parties before the court, without the presence of other parties, the court will order them to be brought in, or dismiss the action if the plaintiff declines to bring them in, notwithstanding the defendant may not have raised the objection by demurrer or answer: Van Epps v. Van Deusen, 4 Paige, 75, 76 ; Davis v. Mayor of…