55 N.E.2d 147 | Ill. | 1944
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *87 The question in this case is whether a certain suit pending in the circuit court of Cook county, entitled Delevitt v. The Board of Education, in which a decree is sought on behalf of all holders of certain refunding bonds issued by the school board, is a class suit. If it is, it is conceded that the suit brought by appellants in this case against the Board of Education is subject to the motion in the nature of a plea in abatement filed therein, and that the circuit court of Cook county was right in sustaining such a plea and dismissing appellants' action.
Appellants state in their complaint that they are the owners and holders of refunding bonds of 1935, second series, issued February 1, 1935, and of interest coupon No. 16 attached to their bonds. They allege that there has been a default in payment of this interest coupon on and after its due date, on August 1, 1943.
The controversy in this action arises over count two of the complaint, count one being a suit filed by the plaintiffs as holders of bonds of the board of education of another date and series. To count one the board of education filed an answer, and that cause is still pending in the circuit court. The judgment in this case was one dismissing count two, which disposes of that branch of the case and *88
renders the judgment final and appealable, though the case as to count one remains undisposed of. (Sebree v. Sebree,
These matters were all set up in the motion in the nature of a plea in abatement filed in this case. The plea was sustained by the circuit court on the ground that appellants are parties to the Delevitt suit by representation and therefore were in that suit, afforded due process of law within the requirements of section 2 of article II of the Illinois constitution and section 1 of the fourteenth amendment to the United States constitution. Whether *89 they are thereby afforded due process constitutes the only question in this case. If they were properly parties by representation in the Delevitt suit, it is conceded that all orders entered in that suit are binding on appellants, and the court in this suit properly sustained the plea in abatement.
The question whether appellants are being afforded due process of law under the State and Federal constitutions by the Delevitt suit, and therefore not entitled to bring this proceeding, is one which, in the last analysis, depends upon the construction of section 1 of the fourteenth amendment to the Federal constitution. While the courts of last resort of the State may, of course, pass upon the provisions of their own constitution, yet where identical provisions appear in the Federal constitution the rulings of the Supreme Court of the United States are final authority where the Federal question is raised. (Hansberry v.Lee,
It is a principle of general application in Anglo-American jurisprudence that one is not bound, in personam, by a judgment in litigation in which he is not designated as a party or to which he has not been made a party by service of process.(Pennoyer v. Neff,
It is not required by the fourteenth amendment that either courts or legislative departments adopt any particular rule for establishing the conclusiveness of decrees in class suits, but where it can be said that the procedure adopted fairly insures the protection of the interests of the absent parties who are to be bound by such proceeding, such does not fail of due process.(Avery v. Alabama,
The claim of application of the doctrine of res judicata, made here, is based upon the order of the court in the Delevitt case denying the motion to dismiss that complaint on the ground that it was not properly a class suit, and appellee says that such isres judicata and binding on appellants in this proceeding. The doctrine of res judicata is bottomed on the ground that the party to be affected, or someone with whom he is in privity, has litigated or has had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction.(Southern Pacific Railroad Co. v. United States,
Appellee says that this court has recognized in Leonard v. Bye,
In Peoples Store of Roseland v. McKibbin,
In Scott v. Donald,
In Farmers Co-op Co. v. Socony, 133 F.2d 101, the plaintiff, for itself and on behalf of all its members who were members during a certain period, brought an action to recover treble damages under the provisions of the Clayton Act. The action was dismissed in the District Court, the question being whether the plaintiff might represent others not parties, as in a class suit. It was held by the Circuit Court of Appeals that the causes of action sought to be enforced were several; that while there existed common questions of law and fact, it could not be said that common relief was sought. Damages sought to be recovered were different, hence common relief was not an object of the suit. *95
Wabash Railroad Co. v. Adelbert College,
To constitute a class suit in which the court acquires jurisdiction over every member of the class, and the decree therein binds members of that class not present, the subject matter of the litigation must be a common or joint interest, not only in the question involved but likewise interest in common in the remedy and subject matter of the suit itself, (Scott v.Donald,
Members of a class may represent others of that class where the sole and common interest of the entire class is to assert or challenge a claimed right; but where the substantial interests of parties present in such a suit are not necessarily or even probably the same as the interests of those they seek to represent, such parties present cannot be said to afford that protection to absent parties required by due process. Hansberry
v. Lee,
In the case before us, while it is true that Delevitt and appellants were all owners of bonds of the same issue, and all were equally interested in the recovery of coupon No. 16 attached to their respective bonds, yet the purchase of bonds by each was a transaction separate and distinct from that of purchase of bonds by the others. There was no joint action or interest in such purchases. In the Delevitt case the plaintiff's sole interest was to recover the amount due upon his coupon No. 16. No other owner or holder of any of the remaining coupons No. 16 joined as party plaintiff in the suit. If it be held under these circumstances that the Delevitt suit is a class or representative suit, and that all owners of coupons No. 16 are to be bound by any order, judgment or decree entered in that suit, then, if a defense of payment, settlement of claim, or any other defense has been made and found good as to Delevitt's coupon, resulting in an order or judgment against him, all members of the class must logically be bound by *97 the order of dismissal and their cause of action disposed of without any of them having an opportunity to be heard. The requirements of a class suit, in matters where the transactions are individual, separate and distinct from each other, are more than a common right of recovery. The fact that the suit is one in which joinder with the plaintiff is permissive, and in which right will be given those sufficiently interested to intervene and participate or come in by entry of appearance, does not make such a suit a class suit. Authorities relied upon by appellee to support the judgment are cases where the common interest, both as to the right to sue and as to the remedy, is of such a character that a decree as to one was logically and justly controlling or binding on all members of the class, and where the parties present could be reasonably said to stand in judgment in the place of all others of the class.
We are of the opinion that the Delevitt suit was not a class suit and the circuit court erred in sustaining appellee's motion in the nature of a plea in abatement and dismissing the suit. The judgment is reversed and the cause is remanded with directions to overrule the motion.
Reversed and remanded, with directions.