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Rule 39. Necessary Joinder of Parties
TEXT
(a) Necessary joinder. Except as otherwise provided in these rules, persons having a joint interest shall be made parties and be joined as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases, an involuntary plaintiff.
(b) Effect of failure to join. When persons who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them made parties. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein shall not affect the rights or liabilities of persons who are not parties.
(c) Names of omitted persons and reasons for non-joinder to be pleaded. In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties, if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.
Source: Federal Rule 19.
Oct. 29, 1940, eff. Sept. 1, 1941.
Change: In (a), “except as otherwise provided in these rules” is substituted for a numerical reference found in the Federal Rule. “On the same side” is omitted from the first sentence of this rule.
In (b), “who are not indispensable, but” is omitted in the first sentence. “As to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it” is omitted in the same sentence. In the second sentence, “as to either service of process or venue” and “or if, though they are subject to its jurisdiction, their joinder would deprive the court of jurisdiction of the parties before it” are omitted in this rule. The last two words of the Federal Rule, “absent persons,” have been changed to “persons who are not parties.”
AMENDMENTS
ADVISORY OPINIONS
(No. 22) Question: Where the owner of a portion of a royalty under an oil lease brings suit against the lessee to recover damages because of the breach of implied contract of reasonable development, is it mandatory that all persons who own portions of the royalty be joined?
Answer: This matter is dealt with by Rule 39 which provides that persons having a joint interest shall be joined in the suit. This rule is taken from Federal Rule 19, and under the annotations to the Federal rule it has been held a number of times that the phrase, "joint interest," should be construed to mean those who would be necessary in the sense of indispensable parties under the previous practice.
If under the previous practice all royalty owners were not necessary parties in such a suit, then it is the opinion of the committee that it would not be necessary to join them because of the adoption of new rules. On the other hand, if joinder of all would have been necessary under the old practice, then it is still necessary under the new rules.
The subcommittee calls attention to possible relaxations suggested by and under the conditions stated in Subdivisions (b) and (c) of Rule 39 and in Rule 42.
The subcommittee feels that the above general construction of the rule is as far as it can properly go in answering the question. In other words, the subcommittee feels that it should confine its interpretations to general explanation of the rules, and should not undertake to brief questions arising under the facts of specific cases.
In the above opinion the subcommittee consulted with and was aided by Roy W. McDonald.
5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).