Munger v. Jacobson

• Decision Date: 20 June 1881
• Citation: 99 Ill. 349,1881 WL 10550
• Parties: MARION MUNGER et al.v.AUGUSTUS JACOBSON, Receiver.
• Court: Illinois Supreme Court

99 Ill. 349

1881 WL 10550 (Ill.)

MARION MUNGER et al.

v.AUGUSTUS JACOBSON, Receiver.

Supreme Court of Illinois.

Filed at Ottawa Jun. 20, 1881.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding. Messrs. WILLIAMS & THOMPSON, for the appellant Marion Munger:

The suit in equity is not divisible. Separate decrees against the various defendants, which do not settle the rights of all parties, can not be entered. Gage v. Rohrback, 56 Ill. 262.

It was error to enter a decree, which was essentially an interlocutory order, while the cause was pending on reference to the master, and to award execution. It was error to consolidate the causes without consent of parties. The crosserrors are not well assigned. The statute does not give interest upon this liability. Rev. Stat. chap. 74, sec. 2.

Interest can not be recovered in this State in any case except when the statute authorizes it. At common law it could be recovered in no case except where there was an express agreement to pay. Interest may then be regarded as depending upon and as the creature of the statute. Madison County v. Bartlett, 1 Scam. 69; City of Pekin v. Reynolds, 31 Ill. 529; Illinois Central Railroad v. Cobb, 72 Id. 148.

In Chicago v. Alcock, 86 Id. 384, the following cases hold expressly that interest is not to be added to the limit of the liability of the stockholder: Cole v. Butler, 43 Me. 401; Sackett's Harbor Bank v. Blake, 3 Rich. Eq. (S. C.) 225.

Messrs. WALKER & CARTER, for the appellant Reuben Hatch:

The first error assigned, is the only one we shall urge: that the court erred in rendering a decree for the payment of money by these appellants, on the hearing on the petition of the receiver in said cause, on motion of said receiver, leaving said cause pending and undetermined.

As we understand the rules of practice, which have become rules of law, the decree upon the petition of the receiver should have been interlocutory, not final. Daniels' Ch. Pr. 986, 993; Coates v. Cunningham, 80 Ill. 467. Messrs. MATTOCKS & MASON, for the appellee and creditors of the bank:

The appellants, Munger and Hatch, were stockholders in the Bank of Chicago, holding $15,000 and $5000 of stock, respectively. They were therefore liable in the respective sums of $30,000 and $10,000, for all debts which the bank owed while they held their stock, and for three months after. Fuller v. Ledden, 87 Ill. 310.

The appellants do not question their liability under the charter, or their accountability to the receiver, as the representative of the general creditors. They claim (1), that separate decrees can not be entered in equity against separate defendants; and (2), that they are liable only for the amount of the stock held by them,--not for double the amount.

On the rightfulness of the procedure herein, we submit the following cases: Gage v. Rohrback, 56 Ill. 262; Castleman v. Holmes, 4 J. J. Marshall, 5; Gaines v. Chew, 2 How. 619; Wiswell v. Stone, 48 Me. 401; Derrick v. Lamar Ins. Co. 74 Ill. 404; Ogilvie v. Knox Ins. Co. 22 How. 380; Pearce v. Pearce, 77 Ill. 284; Erickson v. Nesmith, 46 N. H. 371; McConn v. Delany, 2 Bibb, 440; Hodges v. Mulliken, 1 Bland, 503; Owing's case, Id. 370; Royall v. Johnson, 1 Rand. 421.

That the stockholders are liable to pay interest on the amount of their liability, counsel cited Burr v. Wilcox, 22 N. Y. 551; Frazer v. Little, 13 Mich. 195; Brainard v. Jones, 18 N. Y. 35; Chemical National Bank v. Bailey, 12 Blatchf. 480; Tazwell v. Saunders, 13 Gratt. 354; United States v. Arnold, 1 Gal. 348; 9 Cranch, 104; Casey v. Galli, 94 U. S. 673; Bedell v. Janney, 4 Gilm. 193; Myers v. Walker, 24 Ill. 133; Judge v. Heydock, 8 N. H. 491.

Mr. JUSTICE SHELDON 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 Munger 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, a case in which Rohrback 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...