I dissent.
I agree with the majority that “it is unnecessary for the court to make a declaration of rights” if the complaint shows on its face “that the entire controversy has been settled by a prior judgment.” My disagreement is based upon my view that plaintiffs’ complaint does show on its face that the entire controversy has been settled by the final judgment in the action brought by the bank in 1945.
It appears that neither plaintiffs nor their predecessors had any dealings with the bank after 1914. In April of that year Curtin assigned his account to Mary, who thereupon closed the account by withdrawing the entire balance of $363.54. Curtin thereafter died in 1914 and Mary died in 1951. Plaintiffs’ present claim to alleged membership rights is based solely upon such claim as they may have as successors in interest of Curtin and Mary.
When the account was assigned and closed in 1914, the by-laws of the bank then provided, and had provided for approximately fifty years, that “Membership shall not pass with the ownership of moneys deposited . . . ”; that persons other than the original members might become members but only by action of the board of directors “and not otherwise”; and that "[n] o one shall be deemed a member whose account is once closed.” Regardless of plaintiffs’ failure to allege whether Curtin did or did not consent to the quoted by-laws, and regardless of plaintiffs’ general, conclusionary allegations regarding membership rights, there can be no doubt that plaintiffs’ specific allegations concerning the by-laws show that neither Curtin nor Mary, following the assignment and the closing of the account, was among the “persons appearing and designated upon the books of the corporation as members therein, . . .” (Bank Act, § 29a; Stat. 1945, p. 1017.)
Nor were plaintiffs persons “known to the [bank] to claim to be members therein” for they allege, in their attempt to *565avoid the bar of the statute of limitations, that neither Curtin nor Mary knew of any such claim. If plaintiffs’ predecessors were not known to themselves “to claim” membership, they could not have been known to the bank “to claim” to be members. The verb “claim” means “To ask for, or seek to obtain, by virtue of authority, right, or supposed right; to demand as due.” (Webster’s New Internat. Diet., 2d ed.) It carries a connotation of an affirmative assertion of a supposed right. Since plaintiffs allege that neither Curtin nor Mary knew of any supposed right, they of course do not allege that Curtin or Mary ever affirmatively asserted, or made known a claim to, any supposed right.
It follows that when the bank brought its action in 1945, under section 29a of the Bank Act, neither Curtin nor Mary was among the persons required by the act to be personally named or served as defendants. They and their successors are nevertheless barred as they were among the “other persons unknown” whose claims, if any, were foreclosed by the judgment in rem which was entered in that action. I find nothing in Title etc. Restoration Co. v. Kerrigan, 150 Cal. 289 [88 P. 356, 119 Am.St.Rep. 199, 8 L.R.A.N.S. 682], or Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 [70 S.Ct. 652, 94 LEd. 865], which points to a contrary conclusion here.
I therefore conclude that the trial court properly sustained the general demurrer to plaintiffs’ complaint and entered judgment in favor of defendants. In view of this conclusion, it is unnecessary to discuss defendants’ further contention that plaintiffs’ belated claim is barred by the statute of limitations.
For the reasons stated, I would affirm the judgment.
Respondents’ petition for a rehearing was denied January 23, 1957. Spence, J., was of the opinion that the petition should be granted.