OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
Benson, J.:In the petition for a rehearing a forceful presentation is again made of the claim of the plaintiffs for a pro rata distribution of the funds over which this controversy has been- waged. We must, however, adhere to the view expressed in the opinion that the rights of the parties are determined by their contract, as set out in the by-laws and the certificates.
Our attention, however, is now more directly drawn to the fact that the plaintiffs’ action was not only to obtain a ruling upon the manner of distribution, but also to have such distribution made under the direction of the court. The judgment of the district court appears to have made no provision for such distribution. Having taken jurisdiction of the subject-matter, the court should retain it until complete equity is done, and this all parties now request. To this end the court should ascertain the present condition and amount of the fund available for that purpose and proceed to the distribution thereof in accordance with the judgment. It is difficult to determine with exactness from the agreed statement whether this fund will be sufficient to pay the series stockholders in the classes entitled thereto in full, and it is now shown by the stipulation of the parties filed in this court that the fund is not sufficient for that purpose. This is an additional reason why the court should proceed in its distribution, giving to each *82his proper share thereof. The district court has ample power to do this, and to take possession of the fund for such purpose and appoint a receiver if necessary. The judgment is modified in accordance with these views.