117 Ill. 558 | Ill. | 1886
delivered the opinion of the Court:
The rule, as laid down in Perry on Trusts, (2d ed.) section 876, is: “If the cestuis que trust bring a suit against the trustees, praying for relief, all the trustees ought to-be made parties, -in order that, as each co-trustee is liable to the cestuis que trust, the court may do complete justice, so far as possible, by taking the accounts once for all, and by adjusting the liabilities of the co-defendants, and thus obviate the necessity of ulterior proceedings and a multiplicity of suits. The co-trustees ought to be made parties, (although the equities between themselves can not be adjusted,) for the reason that the decree of relief to the cestuis que trust is the foundation of the relief to the co-trustees inter sese) and if any of the trustees are not parties to the first suit by the cestuis que trust, they will not be bound by the decree, and the whole subject matter will, of course, come under litigation for the second time.” There are exceptions to this rule, as, where one of the trustees has disclaimed the office, or has been discharged, he may not be made a party; and so where a breach of trust is in the nature of a tort, for which there could be no contribution as between the defaulting trustees, they need not all be joined as defendants in a bill for the breach. (Ibid.) But none of the exceptions are pertinent here. Hill on Trustees, 813, *521..
Perry v. Knott, 4 Beav. 179, is almost "identical with the present case, except that the question of the want of proper parties was there raised by plea, while here, by the action of' the complainants in first including all the parties, and then, after the hearing, dismissing as.to Mrs. Hutchinson, -the defendant has had no opportunity, until now, to. raise that question. The remarks of the Master of the Bolls there, in regard to the complainant and Mrs. Howell, are strictly applicable to the complainants and Mrs. Hutchinson here. He said, among other things: “One can not help seeing that in this case the child of Mrs. Howell, who, most probably, had the benefit of the breach of trust,, is, by this suit, seeking to call upon the co-trustees of Mrs. Howell, alone, for payment of the money, without giving them the opportunity of . recovering the amount from her estate, which received it. This does not appear to me to be just or equitable, and certainly is not in conformity with the decision of this court.” See, also, Rooke v. Kensington, 39 Eng. L. & Eq. 76; Barbour on Parties, (2d ed.) 740, *530.
Mrs. Hutchinson being a necessary party, no appeal or writ of error lies upon the decree until there is a final decree as to her. International Bank v. Jenkins, 109 Ill. 219; Thompson v. Follansbee, 55 id. 427.
The case is not analogous to those wherein it has been held that a party may, by a voluntary dismisssal, cause a preliminary and interlocutory decision to become final. In those eases the bill seeks both temporary and permanent relief, and where the prayer for permanent relief is abandoned, the decree on the prayer for temporary relief becomes final. In such cases the decree in the prayer for temporary relief is precisely the same that it would be in the prayer for permanent relief; but here the order dismissing, on the complainants’ motion, as to Mrs. Hutchinson, is, in its effect, directly the reverse of the effect of that indicated by the court in the interlocutory decree rendered before the dismissal. No final decree on the merits of the case is rendered against him, nor can there be, so long as this order remains in force, whatever may be the equitable rights between the parties. If it should be that, in the judgment of this court, Ayres is liable on account of the default of Mrs. Hutchinson, as the record now stands she will not be concluded by that opinion, and consequently will -not be concluded by any decree rendered pursuant thereto. Ayres can not be deprived in this way of the righkof insisting that his co-'trastee shall be a party with him, and concluded, as well as himself, by any decree that may be rendered in the case.
Inasmuch as no final decree has been rendered in the ease, the appeal to the Appellate Court was premature.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
