I am constrained to depart from the opinion of the majority of this court for the reasons hereinafter set forth.
The nature of the litigation and of the two major questions presented to us is fully set forth in the opinion of the majority.
Concerning the first issue, as to whether the order of the trial court overruling the motion of Superintendent Fulton to dismiss the action is a final order such as to permit a review at this time, I entertain grave doubt as to the finality of the order. Bearing in mind that the case is still a pending case, and if permitted to go to a final conclusion may make the decision of this particular point entirely unnecessary, it seems subject to doubt, in view of the general practice of the Courts of Appeals, that the present order now sought to be reviewed is a final order in contemplation of law.
If the plaintiff did not prevail when the matter was heard upon the merits, and in the event of an adverse judgment against the plaintiff, this particular point now before us would hardly be necessary of adjudication. I am, however, unwilling to enter a formal dissent as to this particular point, and to assume for the sake of argument that this order now before us is reviewable at this time.
As to the second point now before us, which goes to the merits of the action, we are called upon to say judicially whether or not the plaintiff has capacity to bring this suit. It is emphatically contended in behalf of Superintendent Fulton that he has the exclusive right to prosecute such actions to enforce *Page 82 stockholders' double liability. Reliance is had upon Section 710-75, General Code, as amended, which reads in substance that: "When the Superintendent of the bank ascertains that the assets of such bank will be insufficient to pay its debts and liabilities, he may enforce the individual double liability of the stockholders."
Article XIII, Section 3, of the Ohio Constitution, as amended in 1912, established and created what is known as the stockholders' superadded or double liability. In the absence of legislation to the contrary, courts of chancery have recognized the right of any creditor, in the event of insolvency of a bank, to enforce such stockholders' double liability as a class suit for the benefit of all. All counsel seem to agree that the law as amended, and as it now reads, vests in the superintendent the exclusive right to enforce double liability of stockholders in a bank. It is conceded that the action of the plaintiff in this case was filed before the amendment referred to took effect. I need but refer to Section 26 of the General Code of Ohio, under the title and heading "Effect of amendment or repeal on pending actions." It reads as follows: "Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."
It can hardly be disputed that at the time the plaintiff filed the action, the amendment which in effect vests exclusive power in the superintendent of banks to enforce the stockholders' double liability was not as yet in effect. When said amendment became effective, the action of the plaintiff was then a pending *Page 83 action, and in view of the provisions of Section 26, General Code, said action is not affected by the amendment, because the amending act did not so express it. The law specifically provides: "It shall not affect pending actions * * * unless so expressed * * *."
I am not seeking to cast any doubt upon the wisdom of the amended law, which gives the superintendent such exclusive authority. The banking act sought to provide a comprehensive plan for the liquidation of insolvent banks, and it may effectively be argued that it can best be done by the superintendent of banks if there be not too much interference from the outside. This action, however, filed by plaintiff, was a pending action at the time the amended law went into effect. At the time the plaintiff filed the action she had an existing cause of action, and as such she had a right to enforce it because the legislation affecting her right to enforce it had not as yet been passed. The subsequent legislation, which, if it existed prior to the filing of her action, would have barred her from bringing the action, did not as yet exist, and therefore could not affect the same.
The argument that the subsequent legislation merely affected the remedy and not the right is, to my mind, untenable. The Constitution of Ohio created a right in favor of the creditors. Such proceeds as are realized from the enforcement of stockholders' double liability inured to the benefit of all the creditors. Under chancery practice, in the absence of legislation to the contrary, any one of the creditors may, in case of an insolvent bank, enforce the stockholders' double liability for the benefit of all the creditors.
When the plaintiff in this case brought her action, she did it at a time when there was nothing in the law to hinder such step. She was seeking to enforce the cause of action which then existed. The subsequent legislation does not go merely to the remedy, but affects the right of a creditor to bring an action. It is *Page 84 unquestionably a pending cause of action which under the provisions of our General Code cannot be affected by subsequent amendments.
In my opinion, the trial court was correct in denying the motion of the superintendent of banks to dismiss the plaintiff's action.