Hanson

Plaintiffs are creditors of the Olson’s Market Incorporated. In September, 1907, it appeared that the corporation was insolvent, and negotiations "were in progress between the defendant and one I. I. Brown, representing the creditors, wherein it was sought to settle the claims of the creditors at thirty cents on the dollar. In order, to consummate these negotiations it was necessary to sell the property of the corporation, and, in addition thereto, for the stockholders to raise a certain amount, which, together with the amount for which the property was sold, Avould aggregate a sufficient amount to pay thirty cents on the dollar. While these negotiations were pending, on November 30, 1907, the charter of the Olson’s Market Incorporated was forfeited for nonpayment of its license tax. Subsequent thereto two sales of the property of the corporation Avere effected Avhich had been in contemplation as a part of the proposed settlement. Stock and fixtures Avere sold for $1,598, and a check therefor was draAvn in favor of the corporation. This check was indorsed “Herbert Choynski, Trustee,” and collected by the defendant, Avho was a director at the time of the dissolution of the…

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 fwo 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…