Gregg v. Mayor of Baltimore

The members of the court being equally divided in opinion on the motion to dismiss the appeal, and also on the propriety of the order appealed^ from, it must be affirmed. Hatton vs. Weems, 12 G. & J., 83.

*504Under such circumstances it. is not usual to file opinions, but, in view of the public and private interests involved, and the importance of having the asserted power of the railroad company to declare dividends of this kind, examined and passed upon, in a cause which, by its proceedings, shall embrace all persons interested in having that question authoritatively determined; and supposing that the progress of the cause may be facilitated, I have felt myself warranted in expressing my opinion on the question of parties, which has been fully argued, and which, possibly, may come before us again, that being the only point now before us for review.

I have carefully examined the cases and books of practice and pleading, referred to in argument, and have come to the conclusion that the opinion of the court below correctly states the manner of making new parties in equity, and being of opinion that this is not a case where, in the absence of precedents, one should be made by granting the prayer of the petitioners, the order appealed from should be affirmed. The suggestions as to inconvenience, and probable loss, resulting from the circuity of proceeding, that the order may occasion, if it should appear, ultimately, that the appellants are entitled to receive the dividends they claim, are entitled to great consideration, and if I felt authorized to yield my assent t.o such arguments, I have every disposition to do so; but the same may be said in many other cases. Indeed, in most, there might be devised a short, easy and expeditious method of arriving at judicial conclusions, and much loss prevented by avoiding the delays incident to proceedings as now conducted, but experience has taught that it is safer, looking to the ends of justice and orderly procedure in our courts, to adhere to the practice and forms which have obtained from the earliest times. Otherwise, and this, I am admonished, might be the result here if the prayer were granted, embarrassment and confusion may be the consequence. Rules of practice are a part of the law governing all judicial tribunals. When parties sue, they form their pleadings and conduct their causes with reference to such principles, and have a right to require that they shall be observed on the opposite side. There may be cases *505in which they should be relaxed or departed from. Some such have been cited, but they are exceptions to the general practice, where no other remedy was open to the parties. The allegation of fraud and collusion in the petition having been denied, I treat the question as if it had not been made.

But, while I agree that the appellants had no right to be made parties in the manner proposed, and that, therefore, there was no error in dismissing their petition, I am of opinion' that no decree can properly pass adversely to the alleged rights of stockholders in the predicament of the appellants; that is, of such as claim the dividends, unless they, or a sufficient number of them to represent that interest, are made parties. This I consider a plain proposition. The corporation does not represent the appellants any more than it does the complainants. The President and Directors bind the members, when acting within the charter powers; if they go beyond, the members may enjoin them, and the bill here is framed on the supposition that the dividends are not warranted by the charter. If some insist that, they are within the charter, shall they not be heard in like manner? No one will deny that the appellants might have filed a bill claiming payment of the dividends, or that the company might have been compelled, by decree, to issue certificates of debt according to the order declaring the dividends, if the court had found it to have been properly made. It is not merely a controversy between these complainants and the company, but between the complainants and all stockholders claiming the dividends, the company being the holder of the common funds of all. As among the corporators, it does not represent all of them, when they have opposite views of the company’s powers, one set denying and the other affirming that the act in question has been performed in the exercise of corporate functions, and claiming the benefits and fruits thereof.

It is the practice, where the persons in interest are numerous, to implead some as the representatives of all in the same interest, and thereby bind them all; if there be diverse interests and claims, all should be represented. If complainants *506choose to proceed against some, omitting others who have a different interest, they may do so, but at the peril of obtaining a decree that will be of no-effect as to those who are not parties, or, if the want of proper parties be disclosed at the trial, of having their bill dismissed, or the cause laid over on that account. In such a case, if a final decree be passed, and the want of proper parties appeared on the record, it would be the duty of this court, on an appeal from such decree, to reverse it or remand the cause, under the Act of 1832, ch. 302, sec. 6. If this record were before us now on such an appeal, I could not hesitate to say that, according to that Act of Assembly, it should be remanded for further proceedings, not because I think that the appellants have a right to the dividends, for that question I have not considered, but because, claiming to be interested, as they do, no decree could be passed, consistently with well known principles of equity, affecting their alleged rights, unless they had had an opportunity of being heard in defence of those rights; and this, as well for the purpose of giving full and complete justice between all persons claiming an interest in the subject-matter, as to protect the corporation itself, whose duty it might be to obey the decree, against further litigation with such claimants as had not been made parties.

With the aid I could obtain from the very able arguments of counsel, and from my own study and reflection, I prepared a statement setting out, at large, my view's in regard to the case; but, inasmuch as a majority of the court did not concur in them, it would be useless to file it in the cause, the more particularly so, as a majority of the court agree that the course of procedure indicated in the opinion of Mr. Justice Tuck, will, in the end, bring to a determination the rights of all parties claiming to be interested in the subject matter of the controversy.

I content myself, therefore, with merely stating what is understood to be the effect of the opinions of a majority of this court. It is this: that before final decree, these petitioners *507ought to be heard as parties, and that if they be not, and are shown, to be prejudiced because of the refusal, on. appeal, after final decree, the decree will be held to be of no avail as against them, and will be reversed or remanded, under the Act of 1832, chapter 302, that the proper parties maybe made.

Order affirmed by a divided court.