S. DORME LARTEY, Appellant, v. COMMUNITY FUNERAL HOME SERVICE, INC., represented by its managing director, Appellee.

APPEAL FROM THE DEBT COURT, MONTSERRADO COUNTY. Date of argument not indicated. Date of decision not indicated. 1. A defense of misjoinder or nonjoinder of parties cannot be effectively raised when the cause of action is brought against a corporation and the representative named is the managing director of that corporation. 2. Parties to an action may be dropped or added by order of the court at any stage of the action, and such misjoinder or nonjoinder is not a ground for dismissal of the action. 3. The allegation of misjoinder or nonjoinder of parties to an action raises an issue of fact, which must be adequately set forth in the pleading alleging such defense, and the proof thereof sustained by the party alleging it. An action of debt was brought against the defendant corporation, in which the managing director was named as its representative. The managing director asserted the defense that he was not properly named, and that the corporation’s general manager should have been designated. The lower court dismissed the complaint without prejudice, and the plaintiff appealed from the judgment of the court. Judgment reversed, case remanded. Richard A. Diggs for appellant. Momo F. Jones for appellee. MR. JUSTICE ROBERTS delivered the opinion of the court. On August 3o, 1968, Bishop S. Dorme Lartey, representing the African Methodist Episcopal Zion Church of Monrovia, sued out an action of debt against the Community Funeral Service, Inc., through its managing director, Joshua N. Bedell. The said Joshua N. Bedell appeared and in answer duly filed, contested the legal correctness of the action in 447 448 LIBERIAN LAW REPORTS which he raised the defense that the proper party had not been named, since he was only the managing director, and not the general manager, of the business, Philip C. Parker, Sr., serving in that capacity. Judge Sebron Hall dismissed the complaint without prejudice on the ground that the wrong party had been named as the representative of the business. “Misjoinder,” according to Mr. Bouvier, “is the improper union of parties who have not a joint interest or causes of action presenting several distinct substantive rights, in one suit at law or in equity.” The issue of misjoinder raised by defendant is that of parties. Mr. Bedell reveals his managerial status as an excerpt of count two of the answer shows. that he is the managing director but Philip C. Parker, Sr., is the general manager of the Funeral Home Service, Inc. . . . 1) Not only is Mr. Bedell a member of the establishment and a party in interest, but, as disclosed by himself, is the managing director. An objection or demurrer on the ground of misjoinder by a defendant is bad if the complaint sets out a good cause of action against any partyin-interest and where it affiirmatively appears from the face of the complaint that the allegedly misjoined defendant is a proper party to the action. The complaint specifically alleges an indebtedness of $4,380 by the Community Funeral Home Service, Inc., for the use of plaintiff’s property and the suit was brought naming its managing director as the representative. The answer also raises an issue of nonjoinder. Referring to the statute quoted by the trial judge, we find the following: “Misjoinder and nonjoinder 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 on its own initiative . . LIBERIAN LAW REPORTS 449 at any stage of the action on any terms that are just. Any claim against a party may be severed and proceeded with separately.” In accord with this statute we find the following: “The nonjoinder of defendants may be cured by the appearance or intervention of the absent parties or by amendment in a proper cause, or may be cured by order of court, under code provisions to the effect that, when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them brought in. There is authority holding that a defect of proper, as distinguished from necessary, parties defendant in an action at law should be cured by a motion to amend. A judgment on demurrer for nonjoinder of parties defendant should give plaintiff an opportunity to bring in the absent party within a time fixed, and in default thereof the suit should be ordered to be dismissed.” 67 C.J.S., Parties, � 129. In spite of the foregoing incident to misjoinder and nonjoinder, a pertinent issue raised by the appellant was completely ignored by the court. The allegation of misjoinder and nonjoinder is an issue of fact which defendant was bound to prove. A principle of law provides that: “A party alleging the existence of a fact must prove it.” Further, “The best evidence must always be produced.” Not only was this averment not presented before a jury, but defendant neglected to profert any documentary evidence with his pleadings to support his contention. An objection based on nonjoinder of parties defendant must be specifically pleaded by a plea or answer setting forth the facts and cannot be raised under a general denial. We find further in Corpus Juris Secundum, “Where the nonjoinder of necessary parties defendant does not appear on the face of the pleadings, evidence 450 LIBERIAN LAW REPORTS must be adduced that there are necessary parties who have not been joined. The burden of proof to show nonjoinder rests on the defendant asserting it.” In view of the foregoing, this Court has no option but to reverse the ruling of the court below and order the cause remanded. Costs to abide final determination. And it is hereby so ordered. Reversed and remanded.