Tunesma v. Schuttler

Mr. Justice Mulkey delivered the opinion of the Court: The decision of this case depends entirely upon the sufficiency of the fourth amended plea, for if it does not present a defence to the action, the demurrer should have been sustained to it, and not to the replication, as was done. On the other hand, if the plea is good, it is quite clear the replication affords no answer to it. Its sufficiency, of course, depends upon the validity of the proceedings under the original bill and supplemental bill, mentioned in the plea,—or, differently expressed, upon whether the court had jurisdiction of the person and subject matter of the suit in those proceedings. With respect to the proceedings and orders made under the original bill, up to the time of filing the supplemental bill, their regularity and validity do not seem to be questioned. The controversy relates entirely to what was done under the supplemental bill, the contention of appellant being that the rights of depositors, under the 9th section of the charter, are purely legal, and enforcible only in a court of law. It may be conceded that the rights in question are purely legal, as contradistinguished from equitable, rights, but it does not necessarily follow that they are cognizable in a court of law only, for when equitable conditions are present authorizing a court of equity to act at all, it will, if necessary to do complete justice, enforce legal as freely as equitable rights. In exercising its jurisdiction, when it has once attached, it is wholly immaterial whether the rights to be enforced are legal or equitable. Wincock v. Turpin, 96 Ill. 135, is cited as an authority against the jurisdiction of a court of equity to enforce the rights of depositors under a charter provision similar to the one now under consideration. It is true the bill in that case was for the purpose of enforcing a liability of the same kind .as that now under consideration, and that the right to relief, under the bill as framed in that case, was denied; but the ■case does not decide that a bill will not lie in any case to enforce this liability. The very contrary is, in effect, admitted. Thus it is said: “It may be a state of facts might exist which would authorize a court of equity to bring before it all the stockholders and depositors, and determine their rights and adjust equities, marshal the fund, and distribute it pro rata,- but no such case is made by this bill, and until such a case shall be made we must leave the depositors to pursue their remedies under the law.” That case was disposed of in the court below upon a demurrer to the bill. The chancellor being of opinion sufficient was shown to warrant the relief prayed, a decree was entered accordingly. On appeal to this court the decree was reversed, this court being of opinion that the case made by the bill was not sufficient to warrant the court to interfere with the depositors in pursuing their legal remedies, and this is all that is really decided by that case. It is there distinctly said: “This bill is singularly indefinite as to the .manner or the grounds of liability of the stockholders. It is not alleged that they are liable for the unpaid balance of their stock, or under the clause in the charter which renders shareholders liable to the depositors to the amount of the shares of stock held, by them, or that their liability was not incurred in some other manner. The bill is too indefinite, vague and uncertain to sustain a decree granting the relief sought. ” Thus it will be seen the decision itself is confined within very narrow limits, and that it was concurred in by a bare majority of the court. It is true the argument of the court, as is most always the case, takes a somewhat wider range; but it is well understood, and hardly necessary to be repeated, that the general expressions in an opinion not necessary to a decision of the case, are always to be limited by the facts directly in issue. With the language of the opinion in that ease thus limited, we see nothing in it to justify the conclusion that a bill of this kind will not lie under any circumstances, but, as already stated, the very contrary is conceded. All doubt on this question, however, is completely removed by the later case of Eames v. Doris, 102 Ill. 350, which expressly holds that a bill of this kind will lie, so that the only question now is, so far as the present inquiry is concerned, do the facts stated in the bill under consideration bring the case within the general principle or rule established by that case? We have no hesitancy in saying they do. The insolvency of the bank, deficiency in assets to pay creditors, the personal liability of stockholders to the depositors, the existence of some nine hundred unpaid depositors, some of whom were trying, by separate suits at law, to get an advantage over the others, and that such separate litigation would waste and exhaust the proceeds of this liability of the stockholders, the only fund to which depositors could look for payment, is all clearly stated in the bill. This was sufficient. The fundamental principle upon which bills of this kind are maintained, is equality of benefit and burden among a numerous class of persons similarly situated, in respect to a particular fund. The principle that equality is equity, has its foundations deeply laid in equity law, and is one of the most fruitful sources of equity jurisdiction. The proceedings set forth in the plea seem to have been conducted with special reference to those in the Eames-Doris. case, supra, which have received the approval of this court, and we are fully satisfied with all that was said in that case. That the liability of the stockholders of the German Savings Bank, under the 9th section of its charter, was adjudicated and settled by the final decree in the proceedings under consideration, is not to be denied, and it must be conceded, if the court had power and jurisdiction, as against the appellant, to render it, it is wholly immaterial whether the decree is erroneous or not, for until reversed or otherwise annulled and set aside, it is just as binding in the one case as the other. Having reached the conclusion that the matter set up in the supplemental bill was equally cognizable in a court of equity with that disclosed by the original bill, it follows there is no ground for the claim of appellant, so far as it is based' upon the difference in the subject matter of the two bills, that he may be bound by what was done under the one, and yet not be bound by what was done under the other. Upon filing the supplemental bill July 3, Í882, the two bills in effect became one bill, as much so as if the new matter had been engrafted upon the original bill by way of amendment.' (Gillet v. Hall, 13 Conn. 426; Hill v. Hill, 10 Ala. 527.) After this, to-wit, on the 27th of the same month, appellant came in and accepted of the receiver his pro rata share of the money then in the receiver’s hands for distribution, under an interlocutory order in the cause. While his name was not mentioned in the bill, either as plaintiff or defendant, yet the suit was commenced on his behalf as much as it was on behalf of the complainants expressly named, and by coming in and proving his interests he was entitled to the same benefits of the litigation, in proportion to the amount of his claim, as they were. This right appellant exercised under the first order of distribution, and if he subsequently neglected his interests, as he appears to have done, he must abide the consequences. By coining in and availing himself of. part of the fruits of the litigation he took the position of a complainant in the bill, and in doing so he is conclusively presumed to have had notice of all steps taken in the case up to that time, and having taken the position of a complainant, he can not be heard to set up his ignorance of what occurred in it afterwards. For the reasons stated, we are of opinion the judgment of the trial court was in conformity with the law, and that consequently it was properly affirmed by the Appellate Court. Judgment affirmed,.