dissenting. To discuss all the questions suggested by this record, would require almost a complete treatise on pleading and practice in chancery.
In 1885 the appellee took a conveyance of a lot, and assumed to, pay an incumbrance on it, created by her grantor, of $1,500. The appellant bought that incumbrance and now holds it. In September of the same year, Margaret A. Humble, a former owner of the lot, filed her bill in the Circuit Court claiming that she had been defrauded in the sale of the lot, by the persons from whom the appellee derived her title to the extent of $1,250, and asking to be subrogated to that- extent, to the lien of the incumbrance.
In January, 1888, the appellant filed her bill in tlie Superior Court, to foreclose the incumbrance. Humble did not make appellant defendant to her bill, nor did the appellant make Humble a defendant- to hers. Probably neither of them knew of the claim of the other. To the bill of Humble the appellee answered in January, 1888, but said nothing of the appellant’s and probably did not then know that the latter held the incumbrance. March 3,1888, the appellee answered the bill of the appellant, and among other things stated the pendency of the suit of Humble in the Circuit Court, and the claim she made. July 2, 1889, the appellee filed in the Humble suit in the Circuit Court, her amended cross-bill, making the appellant a defendant thereto, setting forth the pendency of the two suits, and the claims made by the respective complainants, praying that they might be required to interplead and settle their claims between themselves, and for a perpetual injunction against the appellants from prosecuting the pending or any other suit to foreclose.
The Circuit Court ordered an injunction until further order, and from that order this appeal is brought.
The counsel for the respective parties have made lengthy arguments, and cited many authorities to show, on the side of the appellant, that this cross-bill is a bill of interpleader, and as such not sustainable and, on the side of the appellee, that it is not a bill of interpleader proper, but in the nature of one, and as such is sustainable.
There is no final decree, and the case is here only under the special statute of June 14,1887, allowing appeals from interlocutory orders granting injunctions. Of the merits generally, except so far as incidental, probably only so far as necessary to the inquiry whether the injunction was properly granted, this court, at the present stage, has no jurisdiction.
As the Circuit Court on a final hearing would not be bound by the opinion it held on granting an interlocutory injunction, it can hardly be the law that an erroneous opinion of this court, if given, affirming an order erroneously granting an injunction, would be the law of the case on a subsequent appeal from a final decree on the merits. I shall therefore avoid, as far as may be, any consideration of the general subject of bills of interpleader, and confine myself, as closely as I can, to what incidentally affects the order which is the subject of this appeal.
How, it is a general rule that if the party has another ample remedy, and does not need the aid of the court by a bill of interpleader for his protection, he should avail himself of that remedy. This principle was applied to the extent of depriving the complainant in such a bill of his costs, in Bedell v. Hoffman, 5 Paige, 196, the adverse claimants being already in litigation with each other in another suit. And Badeau v. Rogers, Ibid. 209, is similar. This rule received the sanction— but apparently without any application to the case—of the Supreme Court of Rhode Island in Greene v. Mumford, 4 R. I. 313. It was applied in McDonald v. Allen, 37 Wis. 108, to a bill by a sheriff holding money collected on execution, filed against the plaintiff in the execution, and other creditors of the defendant therein, they claiming that the judgment and execution were fraudulent. The sheriff had his remedy by paying the money into court, and leaving the disposition of it to the court. That he can thus protect himself see Warmoll v. Young, 5 Barn. & C. 660.
The rule was applied, without being stated, in Sablicich v. Russell, L. R., 2 Eq. 441, to proceedings in admiralty, upon the ground that “ inasmuch as two persons can not succeed against the ship in respect of the same subject-matter, it may be supposed that the court of admiralty will do complete justice between the parties.” The case of Shaw v. Chester, 2 Edw. Chy. 405, is very emphatic in the same direction. The appellee here had another and simpler remedy than filing a bill for protection against a double claim, and because she had that simpler remedy, and had no need of an injunction, it is wrong.
“ Substantia] and positive injury must always be made to appear to the satisfaction of a court of equity before it will grant an injunction.” 1 High on Injunctions, Sec. 9.
So that here is the double ground of error in the order: first, it is based upon a bill that should not have been filed because the apqiellee had another ample remedy; and because she did not need an injunction for her protection. What was that other ample remedy?
By her answer in the Superior Court, the appellee imposed upon the appellant the alternative to make.Humble a defendant there, or suffer the bill to be dismissed. A supplementary answer in the Circuit Court would have the same effect in that court. Herrington v. Hubbard, 1 Scam. 569; Shields v. Barrow, 17 How. (U. S.) 130.
“ It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the.rights of all persons interested in the subject-iiiatter of the suit, so that the performance of the decree of the court may be perfectly safe for those who are compelled to obey it.” Story’s Eq. PI. Sec. 72; to the same effect 1 Dan. Chy. 190.
The principle has been so often declared by the Supreme Court;of this State, from Gilliam & Cairns Breese, 164, down, that it would be affectation to cite cases. If appellant made Humble a defendant, or if Humble made appellant a defendant, then a decree in either suit, to which both appellant and Humble were parties, would be a protection to the appellee against further claims of both of them, and a decree safe for her to perform.
The great multitude of cases cited by the counsel of the appellant, that in foreclosure suits, holders of estates or interests in, or claims upon, the lands, adverse or paramount to the estate accruing under the mortgage, need not be made parties, have no application to this case.
Humble claims nothing- in the land. She admits the title of Williams to it; admits that the land is beyond her reach, but says that this unpaid mortgage upon it, is a fund into which property of which she was defrauded, has been converted, and to the benefit of which, principles of equity give her a title. Whether, assuming the facts to be as she alleges, she could have the relief she asks, would be one of the appropriate topics of the treatise to which I alluded in the first sentence of this opinion. Ho declarations made in a suit to which she is not a party will cut her off from that relief, or protect Williams against it, if she is entitled to it, and without giving her an opportunity to be heard, no court can say that she may not be so entitled. Trigg v. Hitz, 17 Abb., Pr. 436.
The only case cited to oppose this view is Harrison v. Pike 48 Miss. 46, in which the court held that on the showing made by the defendant the absent party had no claim.
The court did not deny the general rule, but said if the things alleged were proper to be adjudicated in that suit, the defendant should have made the absent party a party to the cross-bill, or put the complainant under a rule to do so. - v. Walford, 4 Russ. 372, is similar in principle. If the want of all necessary parties does not appear on the face of the bill, it may be shown by answer. Herrington v. Hubbard, 1 Scam. 569; Prentice v. Kimball, 19 Ill. 320; Lietze v. Clabaugh, 59 Ill. 136; Hopkins v. Roseclaire, 72 Ill. 373; Gerard v. Bates, 124 Ill. 150; Augustine v. Doud, 1 Ill. App. 588; Story’s Eq. Pl. Secs. 236-541.
The complainant may probably take issue upon the answer, instead of amending by making the absent party defendant, but then, at the hearing, if it appear that he ought to have amended regularly, the bill would be dismissed with costs, and leave to amend at that stage denied. Van Epps v. Van Deusen, 4 Paige, 64; Lord v. Underdunck, 1 Sand. Ch. 46. There can be no foreclosure unless the parties entitled to the whol.e mortgage money are before the court. Palmer v. Carlisle, 1 Eng. Ch., 1 S. & S. 423. And if there be an adverse claimant to the money, he must be made a party. Fowler v. Doyle, 16 Ia. 534. The same principle is recognized in Sec. 11 of the Garnishment Act, and was before that act applied to garnishments in Born v. Staaden, 24 Ill. 320. Therefore, as the appellant could not carry on her suit without making Humble defendant, after the answer of the appellee had shown the interest of Humble, the injunction was needless, and the order granting it erroneous, and that order ought to be reversed and the cause remanded, in my opinion, but the majority of .the court is against me.
After all, however, practically as to this case, it is only a question of costs. From the judgment of this court, in this class of cases, there is no appeal, and the appellee, if the opinion of the court or this be followed, will be protected against the double claim.