(dissenting).
The complaint alleges: the creation by the defendant of a gratuitous pension . or retirement fund; the appointment of a trustee therefor; the obligation upon the trustee to disburse the fund, upon the determination by the Retirement Committee of the eligibility of employees to become participants in the fund, and its certification to the trustee of the amount and kind of benefits payable to them; that the trustee is in truth and fact a custodian of the moneys of the fund with the duty to make such payments under Art. IX, Sec. 93(b) of the trust instrument as directed by the Retirement Committee; that the trustee is subject to the will and desire of the defendant company in view of the fact that Art. X provides that any trustee appointed may be removed by resolution of the Board of Directors of the company ; that defendant can and by acting by and through the Retirement Committee, could and should obtain for plaintiff the benefits legally due him under the Retirement Trust; but that the defendant has arbitrarily failed and refused to take the necessary action to have such benefits paid to plaintiff.
Based upon these allegations and the further allegation that defendant’s conduct has made defendant liable in damages to plaintiff in a sum the equivalent of plaintiff’s retirement benefits, plaintiff brought this action as a two-pronged suit, a primary prong, a common law suit for damages actual and punitive; the second or alternative prong, a suit in equity for a mandatory injunction “compelling defendant acting by and through its Board of Directors and its Retirement Committee to instruct the Trustee to pay the plaintiff the retirement benefits attributable to him.”
To this petition the defendant filed a motion to dismiss on the ground: that the Mount Union Bank of Alliance, Ohio, the Trustee and the Retirement Committee of the retirement trust are indispensable , parties to the action. The Trustee is in*177dispensable since the provisions of the retirement fund require the company to pay the money to the Trustee and confer upon the defendant no legal right, title or interest in or to the funds. The Retirement Committee is indispensable because the trust instrument provides that the Committee on behalf of the participants, shall enforce the plan in accordance with the terms of the trust agreement and shall have all powers necessary to (a) determine all questions relating to the eligibility of employees to become participants; (b) to compute and certify to the Trustee the amount and kind of benefits payable to participants ; and (c) to authorize all disbursements by the trustee from the trust fund.
An additional ground for dismissal was that the suit was in effect to compel distribution of a fund which is in the possession of the Trustee with its situs in the State of Ohio, without the jurisdiction of the court.
In an order stating that the grounds of the motion are not well taken, the motion to dismiss was denied. Answering as to the common law relief sought, defendant denied that it was or could be liable in damages. Pointing out that in accordance with the provisions of the retirement trust, it has no legal right, title or interest to or in any of the funds which have been paid to and are now in the possession of the Trustee and that it has no supervision or control of them, it denied plaintiff was entitled to the mandatory injunction or any of the equitable relief sought.
Finally, it alleged as it had done in the motion that the Trustee and Retirement Committee are indispensable parties.
The case coming on to be heard upon facts 1 admitted by the pleadings or by *178stipulation, or both, in no manner supporting the claim that the defendant was in possession of the trust funds or had any control over them and further showing that the Retirement Committee had ruled against plaintiff’s eligibility, the District Judge entered the order appealed from which dismissed the complaint without prejudice to an action in a court of competent jurisdiction against the Trustee and the Retirement Committee under the Retirement Trust.
Here on three specifications 2 of error appellant, while not abandoning his suit for damages, directs his argument mainly to the denial of his suit for injunction or other equitable relief. The appellee urging (1) that the trial court correctly held that it had no jurisdiction to enforce appellee’s alleged rights for a pension or retirement benefits against it, and (2) that appellant does not have a contractual right to recover a gratuitous pension from appellee insists that the judgment was clearly right and should be affirmed. Without canvassing or assessing the respective arguments, it seems perfectly clear to me that on the undisputed facts hereinabove set out, no reasonable basis has been, or can be, stated for disagreeing with the judgment of the District Court that nothing whatever was shown to have been done, or left undone by defendant which entitled plaintiff to a judgment for damages against it. I do not understand the majority opinion to hold otherwise. If I understand it, and I believe I do, it holds only that the plaintiff was entitled to have its alternative claim against the defendant for equitable relief considered on its merits on the theory, that the District Court could and should have compelled the defendant, by some kind of order with some kind of penalty, to compel the members of the Retirement Committee, citizens of Illinois and not within the jurisdiction of this Court, to become parties to this suit and submit to the adjudication therein of plaintiff’s claim upon the retirement fund. As I understand this view it, in effect, concedes that the District Judge was right in thinking that under settled principles, there was, as to plaintiff’s equitable suit, a want of indispensable parties. As I understand it too, the suggestion that the defendant, not the plaintiff, must get them into court is an invention of the majority to improve upon or supply the lacks in the established conception that due process requires adequate service or notice under the authority of law before a court of equity or of law may take jurisdiction of a party. I cannot bring myself to go along with these views. This is so not only because of their novelty, but because I believe them to be a fundamental *179attack upon just principles too firmly embedded in the law to be dislodged upon the compulsion of a feeling, however sound, that the defendant should be, but is not, in sympathy with plaintiff’s claim. On the contrary, I am of the firm conclusion that plaintiff’s whole case against defendant was unfounded. The law action was, because defendant had done nothing to subject it to a suit for damages. The equitable action was, because under the undisputed facts, defendant had no control, it ought not to, indeed it could not, exert control over the decisions or actions of the Retirement Committee or the Trust, and in my opinion, it would be an act of Judicial Tyranny if any court would undertake to compel it to so act. The District Judge in providing, perhaps unnecessarily but out of the abundance of caution, that his judgment was without prejudice to appropriate action against the Committee and the Trust correctly pointed plaintiff to the way already pointed out in the Trust Instrument to secure a determination of her rights in respect to the pension fund. In pursuing that way, plaintiff’s yoke will be as easy, her burden as light, as that of an ordinary plaintiff who is required to obtain jurisdiction over the person of a defendant. If she can find the defendants in the jurisdiction she prefers, or can obtain sufficient substituted service upon them to sue them there, well and good. If she must go to the jurisdiction where they reside, this is no more than others have had and will have to do. I know of no statute, rule or decision which invests an Appellate Court, or for that matter any court, with power to acquire jurisdiction over a person by forcing a defendant, under the theory that he has control of that person, and under threat of contempt if he does not do so, to compel that person to come in.
We are told in Scripture that when the invited guests would not come to a banquet, the Lord of that banquet ordered his servant to go out into the highways and byways and compel guests to come in, but that was under another civilization with a different constitution from ours, and besides they were already in the jurisdiction.
I think the judgment should be affirmed. I respectfully dissent from its reversal.
Rehearing denied: HUTCHESON, Chief Judge, dissenting.
. As stated in Appellant’s brief, these are:
“The following facts are admitted by the pleadings or by stipulation, or by both.”
The retirement plan involved in this case is admittedly one in which the employer made all contributions; appellant contributed no money to the plan.
“Appellant was employed by McCaskey Register Company for a period of over thirty-three (33) years.
“McCaskey Register Company merged with Victor Adding Machine Company in October, 3953, the latter being the surviving company.
“McCaskey had caused to be put into effect a retirement trust on December 3., 1947. Appellant became a participant in the plan at the time it was instituted, and McCaskey at various times from that date until December 1, 3952, made various contributions to such plan by reason of Appellant being a participant.
“On April 21, 1953, Appellant suffered a heart attack with evidence of coronary occlusion and was hospitalized.
“McCaskey was duly notified of Appellant’s condition by letter from the physi..cian attending Appellant.
“Appellant’s employment was thereafter terminated on August 31, 1953, by a letter in writing stating that the reason for his discharge was due to the state of his health.
“Thereafter Appellant wrote McCaskey a letter asking about his pension rights, and McCaskey replied that it was the con-elusion of the Company that he (Appellant) was not entitled to participate in the retirement plan.
“Appellant’s attorneys, in reply to their demand for the pension benefits, received a letter from the Trustee directing the demand to the Retirement Committee, advising that all disbursements are made at the direction of such Retirement Committee.
“Thereafter Appellant’s attorneys received a letter from the Retirement Committee, in response to the attorneys’ demand for Appellant’s pension benefits. Such letter advised that Appellant was not a participant in the plan at the time of his discharge by reason of not being a salaried employee, and the letter from the Retirement Committee in substance denied Appellant’s claim.
“Excerpts from the retirement trust instruments which are pertinent to this case are quoted as follows:
“ ‘Article 1. The purpose of the trust is to provide economic security for the employees of the McCaskey Register Company to the fullest practicable extent after a period of faithful service with the company.
“ ‘Article 10, Section 10.2(b). Any trustee appointed hereunder may be removed by resolution of the Board of Directors of the company.
“ ‘Article 3, Section 3.1. The Board of Directors of the Company shall appoint forthwith a Retirement Committee of *178three (3) members to bold office during the pleasure of the Board.
“ ‘Article 3, Section 3.8. The Committee on behalf of the participants shall enforce the plan in accordance with the terms of the Trust Agreement, and shall have all powers necessary to accomplish that purpose, including but not by way of limitation, the following: (a) to de-
termine all questions relating to the eligibility of employees to become participants, (b) to compute and certify to the Trustee the amount and kind of benefits payable to participants.
“ ‘Article 9, Section 9.3(b). If by reason of disability, established in (a) above, a participant shall cease to be employed by the company, the Committee shall certify that fact to the Trustee, and such disabled participant shall be entitled to receive from the Trustee an amount equal to the reserve liability then attributable to him.’
“In this connection, it was admitted by the pleadings and by stipulation that at the time of Appellant’s discharge from the company, to wit: August 31, 1953, the reserve liability then attributable to Appellant as computed by actuaries was the sum of $8,260.98.”
. “First point of error. The District Court erred in failing to grant appellant relief under the testimony and admitted facts.
“Second point of error. The District Court erred in holding that appellant must sue the Trustee and the Retirement-Committee.
“Third point of error. The District Court erred in refusing to grant either damages, actual and exemplary, or an injunction on the ground that appellant had not pursued his legal and lawful rights.”