Illinois Trust & Savings Bank v. Kilbourne

No. 296
Decided Circuit Court of Appeals, Ninth Circuit
Disposition
dismissed
full scope · unanimous
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Court
Circuit Court of the United States for the Northern Division of the District of Washington
Decided
Judge
ROSS, Circuit Judge
Posture
Decree in consolidated foreclosure and receivership proceedings allowing claim of intervening petitioners with priority
Complainant/Trustee of first mortgage (1)
Illinois Trust & Savings Bank
Thomas R. Shepard, Charles E. Shepard
v.
Defendant (0)
Other parties: Annie Sears (alias Anna Sears) — Judgment creditor, Frank Sears — Husband of Annie Sears, Thompson, Edson & Humphreys — Attorneys with lien on Sears judgment, Central Trust Company of the City of New York — Trustee of second mortgage, A. P. Fuller — Unsecured creditor, Seattle Electric Railway & Power Company — Mortgagor, Seattle Consolidated Street-Railway Company — Corporate successor, E. C. Kilbourne — Surety on supersedeas bond, Leilla S. Kilbourne — Surety on supersedeas bond, J. C. Porter — Surety on supersedeas bond, Hellen Porter — Surety on supersedeas bond, S. F. Backus — Receiver

Overview

Appeal dismissed.

Case summary

This case involves an appeal from a Circuit Court decree in consolidated foreclosure and receivership proceedings. Annie Sears obtained a $15,000 personal injury judgment against Seattle Consolidated Street-Railway Company. The company appealed and filed a supersedeas bond with eight sureties. After the Washington Supreme Court affirmed the judgment and entered judgment on the bond, the sureties (Kilbournes and Porters) sought payment from the receivership estate. The Circuit Court decree allowed the Sears judgment claim for $16,036 (principal and costs) with priority over first and second mortgages and unsecured debts. Illinois Trust & Savings Bank, as first mortgage trustee, appealed but did not join the receiver, the second mortgage holder (Central Trust Company), or unsecured creditors as parties. The Ninth Circuit Court of Appeals dismissed the appeal, holding that all parties with an interest in the challenged decree must be given opportunity to be heard on appeal, and the absence of these necessary parties was fatal to the appeal. The court did not reach the merits of the priority dispute.

Abstract

An appeal arose from a circuit court decree in consolidated foreclosure and receivership proceedings, where a personal injury judgment creditor's claim, secured by a supersedeas bond, was granted priority over mortgages and unsecured debts against the receivership estate. The first mortgage trustee appealed without joining the receiver, second mortgage holder, or unsecured creditors as parties. The appellate court dismissed the appeal due to the absence of necessary parties interested in the decree, without addressing the merits of the priority dispute.

Opinion of the court

Majority
opinion
ROSS, Circuit Judgejoined by GILBERT, HAWLEY
  • All parties to record with interest in challenged order or judgment must be given opportunity to be heard on appeal
  • Receiver, second mortgage holder, and unsecured creditors were necessary parties to appeal from decree subordinating their interests
  • Absence of necessary parties is fatal to appeal regardless of merits
  • Appeal dismissed without reaching substantive issues

Jurisdiction

not challenged
Subject matter
Appeal from Circuit Court decree in consolidated foreclosure and receivership proceedings
Jurisdictional facts
  • Appeal from Circuit Court of the United States for the Northern Division of the District of Washington

Procedural posture

Posture at trial
Decree in consolidated foreclosure and receivership proceedings allowing claim of intervening petitioners with priority
Posture on appeal
Direct appeal from decree
Preserved issues
  • Whether necessary parties were omitted from appeal
Forfeited issues
  • Merits of claim allowance and priority

Legal categories

Business

Case record

Full case name
ILLINOIS TRUST & SAVINGS BANK v. KILBOURNE et al.
Docket number
No. 296
Court
Circuit Court of Appeals, Ninth Circuit
Trial court
Circuit Court of the United States for the Northern Division of the District of Washington
Decided
Opinion author
ROSS, Circuit Judge
Opinion type
published
Precedential status
precedential
Judges on panel
GILBERTROSSHAWLEY

Issues & holdings

1
Issues raised
1
dismissed
1
Holdings
Standard of review

de novo

Disposition rationale

All parties with interest in challenged decree must be given opportunity to be heard on appeal; absence of necessary parties is fatal

Preservation

Issue preserved for review

Holdings of the court

Necessary parties on appeal from decree affecting multiple interests
Appeal must be dismissed because receiver, holder of second mortgage, and unsecured creditors whose claims were subordinated by decree were necessary parties but not joined
Ordinary rule requires all parties to record who appear to have any interest in challenged order or judgment must be given opportunity to be heard on appeal; receiver entitled to be heard on whether decree should be changed; second mortgage holder and unsecured creditors' recovery could be affected by setting aside decree; their absence is fatal to appeal
unanimousbinding precedent

Error analysis

  • Failure to join necessary parties on appeal — procedural · error foundNot applicable - jurisdictional defect · not applicable

Standards of review

  • Jurisdictional requirement of necessary parties on appeal — de novo Court reviews legal requirement for party joinder on appeal de novo

Timeline

10
Events
1,575
Days, incident to ruling
—
Span
factual eventcited in opinion

Annie Sears injured while passenger on Seattle Consolidated Street-Railway Company line

Basis for personal injury lawsuit

Annie Sears · Seattle Consolidated Street-Railway Company Seattle, Washington
trial eventcited in opinion

Annie Sears and Frank Sears recover $15,000 judgment against railway company for personal injuries

Outcome: $15,000 judgment for plaintiffs

Creates debt that becomes subject of priority dispute in receivership

Annie Sears · Frank Sears · Seattle Consolidated Street-Railway Company Superior Court of King County, Washington
procedural eventcited in opinion

Receiver S.F. Backus appointed for railway company property in Fuller suit

Outcome: Receiver appointed

Property placed in receivership, affecting all creditor claims

A.P. Fuller · Seattle Consolidated Street-Railway Company · S.F. Backus trial court
appeal eventcited in opinion

Washington Supreme Court affirms Sears judgment and enters judgment on $10,000 supersedeas bond against company and sureties

Outcome: Judgment affirmed and extended to sureties

Creates liability for sureties who later seek indemnification from receivership

Annie Sears · Frank Sears · Seattle Consolidated Street-Railway Company · Sureties appellate court
filingcited in opinion

Illinois Trust & Savings Bank files foreclosure suit as trustee of first mortgage

Initiates main foreclosure proceeding that is later consolidated

Illinois Trust & Savings Bank · Seattle Electric Railway & Power Company · Various defendants trial court
procedural eventcited in opinion

Circuit court consolidates foreclosure suit, two Fuller suits, and related interventions into single proceeding

Outcome: Cases consolidated as cause No. 472

All claims to be resolved in single proceeding, setting stage for priority dispute

Illinois Trust & Savings Bank · A.P. Fuller · Annie Sears · Frank Sears · Sureties · Receiver trial court
filingcited in opinion

E.C. Kilbourne and Leilla S. Kilbourne file petition in intervention seeking payment of Sears judgment from receivership

Sureties seek to have their liability on bond paid from receivership assets

E.C. Kilbourne · Leilla S. Kilbourne · Receiver · Illinois Trust & Savings Bank trial court
rulingcited in opinion

Circuit court decree allows Sears judgment claim for $16,036 with priority over mortgages and unsecured debts

Outcome: Claim allowed with priority

Creates appealable order that gives rise to jurisdictional defect

Circuit Court · Illinois Trust & Savings Bank · Sureties · Receiver trial court
appeal eventcited in opinion

Illinois Trust & Savings Bank appeals decree but omits receiver, second mortgage holder, and unsecured creditors as parties

Outcome: Appeal filed with defective party joinder

Basis for dismissal of appeal for lack of necessary parties

Illinois Trust & Savings Bank · Annie Sears · Frank Sears · Thompson, Edson & Humphreys · Kilbournes · Porters appellate court
filingcited in opinion

J.C. Porter and Hellen Porter file similar petition in intervention

Additional sureties seek same relief

J.C. Porter · Hellen Porter · Receiver · Illinois Trust & Savings Bank trial court

Facts & evidence

Incident

Date
Location
Seattle, Washington (railway line of Seattle Consolidated Street-Railway Company)

Key facts

10 facts
  1. Annie Sears was injured as passenger on railway on September 10, 1891
  2. Sears recovered $15,000 judgment against railway company on March 24, 1892
  3. Company appealed and filed $10,000 supersedeas bond with eight sureties
  4. Washington Supreme Court affirmed judgment on November 18, 1893 and entered judgment on bond
  5. Receiver appointed for company's property on June 14, 1893 in Fuller suit
  6. Foreclosure suit by Illinois Trust & Savings Bank (first mortgage trustee) filed December 31, 1894
  7. Multiple suits consolidated on June 6, 1895
  8. Kilbournes and Porters (sureties) filed petitions in intervention seeking payment of Sears judgment from receivership
  9. Decree allowed Sears judgment claim for $16,036 (principal and costs) with priority over mortgages and unsecured debts
  10. Receiver, second mortgage holder, and unsecured creditors not made parties to appeal

Disputed questions

  • Whether company diverted income to pay mortgage interest instead of Sears judgment while appeal pending
  • Whether sureties signed bond as accommodation or with interest in company
  • Amount of expenses incurred by sureties in resisting judgment enforcement

Procedural history

10 steps
  1. 1891-09-10: Annie Sears injured on railway
  2. 1892-03-24: Sears obtains $15,000 judgment in state court
  3. 1893-06-14: Receiver appointed in Fuller suit
  4. 1893-11-18: Washington Supreme Court affirms Sears judgment and enters judgment on supersedeas bond
  5. 1894-12-31: Foreclosure suit filed by Illinois Trust & Savings Bank
  6. 1895-06-06: Consolidation of foreclosure, Fuller, and related suits
  7. 1895-12-29: Kilbournes file petition in intervention
  8. 1896-01-02: Porters file petition in intervention
  9. 1896: Decree allows Sears claim with priority
  10. 1896: Illinois Trust & Savings Bank appeals, omitting receiver, second mortgage holder, and unsecured creditors

Evidence in the record

Testimonial
  • Allegations about company's income and diversion of funds during appeal period
  • Claims about expenses incurred by sureties in resisting judgment enforcement
Documentary
  • Sears judgment for $15,000 from state court
  • Supersedeas bond for $10,000 with eight sureties
  • Washington Supreme Court decision affirming judgment and entering judgment on bond
  • Mortgage documents securing $381,000 bonds
  • Receiver's certificates totaling approximately $91,111
  • Consolidation order combining multiple suits
  • Petitions in intervention by Kilbournes and Porters
  • Answers to petitions by receiver and Illinois Trust & Savings Bank

Objects of relevance

Railway lines and property in receivershipReceiver's certificates as debt instruments

Policy considerations

  • Ensuring all affected parties have opportunity to be heard on appeal
  • Maintaining integrity of appellate process through proper party joinder
  • Preventing piecemeal litigation by requiring all interested parties participate in appeals

Authorities

Cited authorities (4)

Masterson v. Herndon, 10 Wall. 416
followedprecedent
Cited for rule requiring all interested parties be heard on appeal
Hardee v. Wilson, 146 U.S. 179-181
followedprecedent
Cited for restatement of rule requiring all interested parties be heard on appeal
Davis v. Trust Co., 152 U.S. 590
followedprecedent
Cited for principle that absence of necessary parties is fatal to appeal
Sipperley v. Smith, 155 U.S. 86
followedprecedent
Cited for principle that absence of necessary parties is fatal to appeal

Related cases (4)

Masterson v. Herndon, 10 Wall. 416
precedent
Cited for rule requiring all interested parties be heard on appeal
Hardee v. Wilson, 146 U.S. 179-181
precedent
Cited for restatement of rule requiring all interested parties be heard on appeal
Davis v. Trust Co., 152 U.S. 590
precedent
Cited for principle that absence of necessary parties is fatal to appeal
Sipperley v. Smith, 155 U.S. 86
precedent
Cited for principle that absence of necessary parties is fatal to appeal

Standards & doctrines

  • Necessary parties doctrine on appeal
  • Priority of claims in equity receivership

Legal principles applied

  • All parties with interest in challenged order must be heard on appeal

Notable quotes

“One of the ordinary rules respecting appeals is that all parties to the record who appear to have any interest in the order or judgment challenged must be given an opportunity to be heard on such appeal.”
majority — Stating fundamental procedural rule for appeals
Foundation for court's holding dismissing appeal for lack of necessary parties
“Manifestly, therefore, those parties to the record were necessary parties to the appeal, and their absence is fatal to it.”
majority — Applying rule to facts of case
Direct holding that appeal must be dismissed due to jurisdictional defect
Index terms72
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Entities and documentation
Legal actions
Action type
dismissed
Target
appeal
Appealed from
Circuit Court decree
Context
Appeal dismissed because necessary parties (receiver, second mortgage holder, and unsecured creditors) were not joined
Scope
full
Disposition vote
unanimous
Search facets
Parties
Judges
GilbertHawleyRoss
Courts
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