| Ill. | Jun 20, 1881
delivered the opinion of the Court:
In this proceeding for the enforcement of the stock liability of stockholders to double the amount of their stock, under section 3 of the charter of the Bank of Chicago, and for the distribution of the amount thereof among the creditors of the bank, there was a decree against Hunger and Hatch, two of the stockholders.
The present appeal is only by them. Their liability, as found under the charter, is not questioned; but they claim it was erroneous to decree against them at the then stage of the proceedings; that as the suit of Cunningham v. The Bank stood at that time, by the decree of February 2, 1878, referred to the master to take an account of all debts and liabilities of the bank, and of all the stockholders, and report the amount of stock held by them, and their solvency or insolvency, and report the evidence of his findings thereon, there should have been no decree against them until at the time of a final decree with respect to all parties, and a final disposition of the entire case. There are cases where there are several parties, with distinct and several responsibilities, in which the court may decree as to one, and retain the cause as to the others. Thus in Gage v. Rohrback, 56 Ill. 262" date_filed="1870-09-15" court="Ill." case_name="Gage v. Rohrbach">56 Ill. 262, a case in which Bohrback filed a bill against Gage, the city of Chicago, and several other defendants, and a demurrer of Gage had been overruled, — we there said: “ After overruling the demurrer, the court * * had the undoubted right to decree the relief against the plaintiff in error (Gage), * * and the court might then have rendered a final decree granting relief against him. But there being other defendants, some of whom had answered, some had demurred, and others having taken no steps, the usual practice justified the court in reserving the decree. * * * As plaintiff in error abided by his demurrer, he could not * * * prevent the court from rendering a final decree on the demurrer against him, nor could he thus arrest the progress of the case as to the other defendants.”
In Castleman v. Holmes, 4 J. J. Marshall, 5, a case strongly resembling the present, it was said: “The propriety of decreeing against part and continuing the cause as to the other defendants, is questioned. We can not perceive that it was erroneous to take that course in this case. The liability of the defendants is several, and not joint. They were properly united in the same action, * * * but when the rule of apportionment was ascertained, and the cause prepared as to any one, we can not see any sufficient reason why he should not be decreed to do justice, without delaying until others can be reached.”
There is, then, the warrant of authority for decreeing against the appellants before the time of the final disposition of the case, and there can be no cause of complaint on their part for so doing.
It appears in the case, that Hunger and Hatch are the only solvent stockholders residing within this State; that the debts of the bank exceed the total sum of its assets and all the stock liabilities, so that the whole amount of appellants’ liabilities will be needed for the payment of the debts. The amount of that liability can not be affected by any subsequent proceeding to be had in the case. As the amount of their liability must be paid by them in any event, it will not concern them what further decree may be rendered with respect to other stockholders, or how distribution may be made among the several creditors. There is no reason, then, for the delay of decree against appellants until the making of the final decree of distribution in the case, but, on the contrary, as we refuse to allow interest on the liability, there is strong reason against such delay and in favor of a decree at once, which will be bearing interest.
Piper and others, creditors who appealed from a previous order in the case enjoining them from prosecuting suits at law, and whose appeal has been dismissed, have presumed to file an argument in the case of this appeal of Hunger and Hatch, which, of course, is out of place here; but noticing that it makes the point that the remedy for the enforcement of this stock liability is at law only, and not in equity, according to former decisions of this court, we will observe that that question does not arise upon this appeal of Hunger and Hatch, and this opinion is not to be taken as expressive of any opinion in regard thereto. Hunger and Hatch have never taken any such objection; but, to the contrary, they seem rather, in their answers, to invoke the exercise of chancery jurisdiction in the matter.
A cross-error is assigned in the non-allowance of interest on the amount of the stock liability. Appellees claim they were entitled to interest thereon, either from the time when the Bank of Chicago, being “wholly insolvent,” made an assignment, July 10, 1874, or from the time of commencement of suit upon this liability, December 23, 1874. The court below denied interest.
The adjudged cases as to the allowance of interest upon such a liability are not harmonious. Burr v. Wilcox, 22 N.Y. 551" date_filed="1860-12-05" court="NY" case_name="Burr v. . Wilcox">22 N. Y. 551, Casey v. Galli, 94 U.S. 673" date_filed="1877-03-26" court="SCOTUS" case_name="Casey v. Galli">94 U. S. 673, are cases in which interest was allowed. In Cole v. Butler, 43 Me. 401" date_filed="1857-07-01" court="Me." case_name="Cole v. Butler">43 Me. 401, Sachett’s Harbor Bank v. Blake, 3 Rich. Eq. 225, it was denied. The tenor of our own decisions is rather against the allowance of interest generally, except in cases where the statute authorizes it: Madison County v. Bartlett, 1 Scam. 69; Illinois Central Railroad Co. v. Cobb, 72 Ill. 148" date_filed="1874-01-15" court="Ill." case_name="Illinois Central Railroad v. Cobb, Blaisdell & Co.">72 Ill. 148, and other cases.
The present is certainly not embraced within the cases in which the statute gives interest, and we think its disallowance here best accords with our own decisions upon the subject of interest.
The decree, as respects Hunger and Hatch, is affirmed.
Decree affirmed.