Gen. No. 11,531 | Ill. App. Ct. | Oct 31, 1904
delivered the opinion of the court.
In the present state of the record we decline to investigate the merits of this controversy.
The demurrer to the answer of appellant having been sustained, and appellant having elected to stand by its answer, all properly-pleaded allegations thereof are to be taken as true. This rule is too well settled to require the citation of authorities. It is therein admitted that since early in the year 1901 the General Company has not been and is not now in the possession, control or operation of any of its lines or tracks or cars mentioned in the petition and answer; and that on such date its possession, control and use of such properties were taken from it and-vested in a receiver. It follows that the General Company is powerless to obey the judgment entered herein. That judgment is joint, commanding each of these street railway companies, under certain prescribed conditions, to receive passengers from the other company without the payment of additional fare. It being physically impossible for the General Company to obey this judgment, it is bad as to such company; and being joint it is therefore bad as to the City Company.
It is also admitted that at the time the petition was filed a receiver was, and for two years prior thereto had been, in the actual and exclusive control and operation of all the properties of the General Company. That receiver is not made a party to the petition. A receiver is not the representative of the corporation whose property he holds; he is the officer and representative of the court which appointed him. 24 Am. & Eng. Ency., 2nd ed., p. 26, and cases cited in note. A mandamus proceeding is an action at iaw. Under the rules of pleading governing such actions, a judgment will not be entered where it appears without dispute that a party having a legal interest in the contract sought to be enforced is not before the court. If there be a valid excuse for not bringing in such a party, that excuse must be alleged and proved by the relator or plaintiff. Dement v. Rokker, 126 Ill. 190, and cases cited; Peck v. Board, etc., 90 Cal. 384" date_filed="1891-07-31" court="Cal." case_name="Peck v. Board of Supervisors">90 Cal. 384; Cullem v. Latimer, 4 Tex. 329; State v. Jones, 1 Ired. L. 129; 2 Spelling on Extra Relief, sec. 1369. The rule in chancery is the same. Atkins v. Billings, 72 Ill. 597" date_filed="1874-06-15" court="Ill." case_name="Atkins v. Billings">72 Ill. 597.
The receiver, being in actual possession of the properties of the General Company, and being engaged in the operation of the same to the entire exclusion of that company at the time the petition was filed, was a necessary party to this proceeding. That he was not made a party constitutes reversible error, since he is not bound by the judgment entered herein.
“ The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case, unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in manner and by the person or body sought to be coerced, and must be effectual as a remedy if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done. It is well settled, that, in a doubtful case, this writ should not be awarded. It is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act.” People v. Hatch, 33 Ill. 9" date_filed="1863-11-15" court="Ill." case_name="People ex rel. Harless v. Hatch">33 Ill. 9. See, also, People v. Mayor, 51 Ill. 28; People v. Lieb, 85 Ill. 484" date_filed="1877-06-15" court="Ill." case_name="People ex rel. Phillips v. Lieb">85 Ill. 484; People v. Klokke, 92 Ill. 137; People v. Village of Crotty, 93 Ill. 180" date_filed="1879-09-15" court="Ill." case_name="People ex rel. Besse v. Village of Crotty">93 Ill. 180; North v. Trustees, 137 Ill. 296" date_filed="1891-03-30" court="Ill." case_name="North v. Board of Trustees of the University">137 Ill. 296; and McGann v. People, 194 Ill. 526" date_filed="1902-02-21" court="Ill." case_name="McGann v. People ex rel. Coffeen">194 Ill. 526.
The judgment of the Circuit Court is reversed and the cause is remanded. Reversed and remanded.