Leonard v. Bye

• Decision Date: 02 October 1935
• Docket Number: No. 22760.,22760.
• Parties: LEONARD v. BYE.
• Court: Illinois Supreme Court

361 Ill. 185

197 N.E. 546

LEONARD

v.BYE.

No. 22760.

Supreme Court of Illinois.

June 14, 1935.

Rehearing Denied Oct. 2, 1935.

Action by B. W. Leonard against Herbert W. Bye. From a judgment for defendant dismissing the action, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Cook County; John C. Lewe Judge.

Thomas G. Deering, of Chicago, for appellant.

Herbert W. Bye, of Chicago, pro se.

Scott, MacLeish & Falk, Isaac S. Rothschild, Levinson Becker, Peebles & Swiren, and Sonnenschein, Berkson, Lautmann, Levison & Morse, all of Chicago, amici curiae.

Charles F. McElroy, George A. Curran, Sidney W. Mandel, Charles Le Roy Brown, Lionel A. Mincer, John C. De Wolfe, John J. Sharon, David Silbert, Karl Edwin Seyfarth, and George Edward Leonard, all of Chicago, amici curiae.

FARTHING, Justice.

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 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that while the two shares were so held appellant deposited $553.54 in a savings account, and this amount had not been withdrawn at the time the bank was closed.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 mumber 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 (Laws 1929, p. 174) to section 11 of the Banking Act (Smith-Hurd Rev. St. 1931, c. 16 1/2, § 11), 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 (article 1, § 10, cl. 1; amend, 14, § 1). In answer to this it is contended that the questions of law urged by appellant are not presented by this record. The 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, 73 Ala. 595, was an action for malicious prosecution. The defendant pleaded in abatement the pendency of another suit. Plaintiff demurred to the plea, and his demurrer was overruled except as to the first count of the declaration. Plaintiff then filed a replication of nul tiel record, which was overruled except as to the first count. On appeal it was held that the plea went to the whole complaint and not to any count thereof, and so the demurrer should have been overruled as to all counts of the declaration. The court said: ‘The principle is well settled, that the pendency of a prior suit for the same thing, or, as is generally said, for the same cause of action, in a court of competent jurisdiction, between the same parties, will abate a later suit; because the latter is deemed unnecessary and vexatious.’ (Citing cases.) In that case it was contended that an inspection and comparison of the records would show that the averment of the termination of the prosecution made in the first action is untrue in point of fact; that the prosecution was not ended; that the cause of action had not accrued; and therefore the first action was premature, would have proved ineffectual, and was not pleadable in abatement of the second suit. In answer to this the court said: ‘The falsity of the averment of the termination of the prosecution made in the first action could have been shown only by extrinsic evidence. It was matter of defense; there was the necessity for defense, unless the defendant was willing to submit to two judgments for the same wrong. The necessity was imposed by the act of the plaintiff; and the necessity is the oppression and vexation, against which the law intends to guard and protect the defendant. If the fact be, that the first suit was prematurely commenced, that was a reason for its discontinuance or dismissal. It is not a reason for multiplying suits against the defendant for the same wrong. * * * There are authorities, to some of which we have been referred by the counsel for the appellee, holding that a prior suit which cannot be made effective and available, is not pleadable in abatement of a second suit for the same cause. The doctrine is inconsistent with the English authorities, seems to have originated in the courts of Connecticut, and has been adopted by the courts of several States. The authorities were thoroughly considered, and the question ably discussed by the Supreme Court of New Hampshire in Gamsby v. Ray, 52 N. H. 513, and the doctrine repudiated. If it be admitted, and it must be, that the principle is founded upon the policy of discouraging a multiplicity of suits-of protecting the defendant from oppression, from the grievance of double vexation for the same cause or thing, there can be no inquiry, whether the prior suit is capable of being prosecuted by the plaintiff to a successful issue, if it is resisted by the defendant. Unless the suit is commenced in a court without jurisdiction, or the process upon which the validity of the proceedings depends, is upon its face void, the defendant...