Opinion by
Bеitel, a minority stockholder and a director of defendant corporation, filed a bill, under an agreement with plaintiff and several others, asking for the appointment оf a receiver, alleging certain acts of mismanagement. The prayer was refused, and no appeal was taken. Thereafter, plaintiff, another director and stockholder, filed the present bill, joining the other directors as parties defendant with the corporation. The averments and prayers in both bills were substantially the same. Thе court below held that all the material issues of fact had been adjudicated adversely to the claims of the present plaintiff, and that the whole matter was res judicata. Appellant contends he is not bound by the result of the former litigation.
It is a general principle of public policy, making for the general welfare, for the certainty of individual rights, and for the dignity and respect of judicial proceedings, that the doctrine of res adjudicata should be supported, maintained and applied in proper cases. Nor should its application be restricted by technical requirements, but a broad view should be taken of the subject, having always in mind the actual purpose to bе attained. The rule should not be defeated by minor differences of form, parties or allegations, when these -are contrived only to obscure the real purposе, — a second trial on the same cause between the same parties. The thing which the court will consider is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties actually had an opportunity to appear and assert their rights. If this be the fact, then the matter ought not to be litigated again, nor should the parties, by a shuffling of plaintiffs on'the record, or by change in the character of the relief sought, be permitted to nullify the rule. This is a universal rule and is well stаted by our present Chief Justice in State Hospital v. Con. Water Co.,
The present action, as stated above, is a stockholder’s bill against the corporation and its directors.' So, also, the parties plaintiff are substantially the same in both cases. The first bill was against the company only, but the addition of the officers of the corporation as parties to a second proceeding does not prevent the application of the doctrine of estoppel.
The purpose of the second proceeding was to recover certain sums of money from the two directors named as defendants, which had been paid without legal authorization. But this was the very thing the first proceeding was intended to accomplish. As we read the averment of that bill, and the findings of fact, there can be no question about it. The chancellor there found that money had been paid to the two directors without any authority from the board of directors, contrary to law, and that a promissory note had been given by one of them to cover this payment. Other sums were found to have beеn paid to employees, and, further, the corporation refused to enter suit on the note above mentioned. The court below held that the amounts given to the directors were not paid with the purpose of defrauding the company, but under a claim of right for services actually *265 rendered; and that there was no fraud or mismanagement in the company’s affairs, the institution of suit on the note being a discretionary matter for the board. In point of fact, the maker of the note was worthless, and a suit would have beеn a vain thing.
The prayer in the first bill was for the appointment of a receiver to recover the moneys due the corporation. The relief asked was sufficiently cоmprehensive to have included the recovery of these sums had the case warranted such action, but the court below dismissed that bill and the decree stands undisturbed.
We cоnclude, from our examination of the record, that there was an identity of subject-matter, cause of action, parties, and quality in the persons for or against whom the сlaim is made, in the two proceedings, and the addition of other parties to the original action did not make it a new cause of action, (34 C. J. 396, 757; Loyal Orange Institution v. Morrison,
Another argument concerns an item omitted from the first bill but included in the second. It related to the *266 payment of a dividend out of capital. While the averments did not cover this item speсifically, the findings of fact did cover the payment in much detail, and the relief asked, — authority to collect “all moneys due,”— would have enabled the receiver to compel the return of the illegal dividend, if the court concluded that such action was proper. While it is unnecessary to discuss this question in view of what we have held above as to the effect of the prior case upon the present bill, we think that the action of the court below denying relief was proper.
The learned chancellor wаs influenced by the following circumstances: The defendant corporation was solvent ; it had no creditors, was in process of dissolution, and was no longer transacting any businеss; finally, and of the greatest importance, this complainant Hochman, and Beitel, complainant in the former suit, each received his proportionate sharе of the illegal dividend and made no offer at any time to return it.
It was held in McDonald v. Williams,
The decree of the court below is affirmed, at the cost of appellant.