197 N.E. 546 | Ill. | 1935
Appellant, B.W. Leonard, brought an action at law in the superior court of Cook county against appellee, Herbert W. Bye, to recover from him the superadded stockholder's liability imposed by section 6 of article 11 of the constitution. The complaint alleged appellant is a creditor of the Depositors State Bank, an Illinois corporation, and Bye was the holder of two shares of its stock, of the par *187 value of $100 each, from February 23, 1921, to June 20, 1924; that while the two shares were so held appellant deposited $553.54 in a savings account, and this amount had not been withdrawn at the time the bank was closed. Bye moved to dismiss, for the reason that there was another suit pending in the circuit court of Cook county between the same parties for the same cause of action. In support of the motion to dismiss, appellee filed his affidavit, setting forth that on January 18, 1932, before the present suit was commenced, Martin Wright and Anna Lanser filed a suit in chancery against appellee and other persons who were alleged to be stockholders of Depositors State Bank, upon the same promises and undertaking and to collect the same liability upon which appellant seeks to recover from appellee in this suit, and that the chancery suit was pending in the circuit court of Cook county as general number B-244811. He stated that the complainants in the chancery suit claimed that they were creditors of the Depositors State Bank at the time of filing their bill of complaint, and that they were seeking to maintain the equity suit against the appellee and all other persons alleged in the bill to have been stockholders at the closing of the bank or at any time prior thereto, and that the chancery suit was a representative suit on behalf of the complainants and all other creditors of the Depositors State Bank. The motion to dismiss was allowed.
Appellant has perfected an appeal direct to this court. He contends that the suit pleaded in abatement of the present action will not lie under general equity jurisdiction or under the 1929 amendment to section 11 of the Banking act, which purports to authorize such a proceeding. He says that amendment is unconstitutional, in that it violates the rights of creditors under both the contract clause and the due process of law clause of the Federal constitution. In answer to this it is contended that the questions of law urged by appellant are not presented by this record. The *188 primary question is whether the superior court erred in dismissing appellant's action on the ground that a prior suit was pending between the parties based on the same cause of action. To determine the propriety of the trial court's ruling it is necessary to ascertain what scope of inquiry is permitted when the defense of another suit pending is made.
Foster v. Napier,
In Wilson v. Atlanta, K. N. Railway Co.
However, the appellant contends that the equity suit is an absolute nullity so far as he is concerned. He says that the circuit, court has no jurisdiction over his person, and that he is not bound, "willy-nilly," by the gratuitous act of complainants, who say they represent him there. There can be no doubt that circuit courts have jurisdiction over representative suits. In such suits the remedy is furnished to a class of individuals who have common rights, who need protection, and in pursuit of that remedy individuals have the right to represent the class to which they belong. The complainants in the suit purported to represent the appellant, who would be bound by the results in the case until the decree rendered there is reversed on appeal. Greenberg v. City of Chicago,
Appellant then insists that the superior court had the power to examine into the jurisdiction of the circuit court, and that such examination would have shown that the proceedings in the circuit court are a nullity so far as he is concerned. Without attempting to pass on the question as to whether the circuit court properly exercised equity jurisdiction in the case before it, those proceedings could not be treated as a nullity. They were not open to collateral attack in the superior court. What we said in Miller v. Rowan,
In an equity case the defendant must raise such jurisdictional questions as the existence of an adequate remedy at law at the commencement of the suit, and if such question is not raised in the proceeding the decree will not even be erroneous. Miller v. Rowan,
The proceedings in the circuit court cannot be said to be null and void, for courts of equity have power to entertain representative suits. On appeal it might be successfully urged that the circuit court was proceeding erroneously in assuming equity jurisdiction and that its decree should be reversed. The superior court did not have before it any of the proceedings in the prior suit and which it had no power to review. It properly refused to go into the question of the circuit court's equity jurisdiction over the representative suit. The adoption of the rule contended for by appellant would be disruptive of the orderly process of our courts and fatal to the well known principle that there must be an end to litigation. We find that the questions argued by appellant cannot be reached and passed upon.
The judgment of the superior court of Cook county is affirmed.
Judgment affirmed. *193