I concur in the judgment.
The complaint and the findings showed that Choynski held $598 as trustee for the creditors and stockholders of the defunct corporation; that he denied the trust and applied the money to his own use, and that the two other directors were also trustees to administer and settle the affairs of said corporation bound to the same duties as Choynski. The court had full authority in a suit against Choynski alone to give judgment declaring that he held that sum as such trustee. But it could not go further and direct the administration and distribution of the trust funds, unless the two other trustees were parties to the suit.
Under these circumstances, if the plaintiffs or Choynski had asked to have the other two trustees made parties, it would have been the duty of the court to grant the application, have the parties brought in by proper amendment, proceed to determine the entire controversy, and order that the trust be settled. The cases cited in the opinion of Justice Wilbur so declare. But I do not think they are authority for the proposition that the court was bound of its own motion to require the pleadings to be amended so as to bring in the other two trustees. In other words, if the court below had, upon *Page 287 the complaint and findings, given judgment that Choynski had $598 in his possession and that he held the same in his capacity as one of the trustees of the defunct corporation, for the benefit of the stockholders and creditors, including the plaintiffs, I do not think this court would be justified in reversing the case because it did not, of its own motion, go on and have the other parties brought in so as to give relief which no one had prayed for. In all other particulars I agree with the opinion of Justice Wilbur.
Lawlor, J., and Olney, J., concurred.