Ballantyne v. Mortimer

DOOLING, J. pro tem. The appellants herein were successful plaintiffs in the action entitled Allen v. California Mutual Building & Loam, Association (hereinafter called the Allen case) and the judgment in their favor was affirmed by the Supreme Court. (22 Cal.2d 474 [139 P.2d 321].) That judgment, so far as material to the question now presented, is here quoted:

“It is further adjudged, decreed and ordered, that each of the immediately named hereinafter plaintiffs be and each of them is here restored to Mutual Share Holders of Mutual Shares of the defendant California Mutual Building and Loan Association . . . with equal right of payment in the liquidation of the defendant California Mutual Building and Loan Association with other mutual share holders of said Association . . . and without any right of priority in such payments over other mutual shareholders of said Association. ...”

The sole effect of this judgment as it affected the appellants herein was to place them upon a parity with all other mutual shareholders in the right, whatever that right might be, to receive payments in the course of the liquidation of the association.

Contemporaneously with the' entry of this judgment there was pending on appeal a judgment in an action entitled Adams v. California Mutual Building & Loan Association (hereinafter called the Adams case). This action was a representative one prosecuted on behalf of the named plaintiffs and all persons similarly situated. Its purpose was to establish the right of mutual shareholders to share ratably with investment certificate holders in the liquidation of the [84]association. After the entry of the judgment in the Allen case the Supreme Court reversed the judgment in the Adams case. (18 Cal.2d 487 [116 P.2d 75].) The effect of the reversal in the Adams case was to establish the right of plaintiffs therein and all others similarly situated, as mutual shareholders, to participate in the liquidation of the association on a parity with investment certificate holders.

In its opinion in the Adams case the Supreme Court said:

“Inasmuch as these are representative actions, brought on behalf of named plaintiffs and others similarly situated but not represented in corresponding litigation, any award of counsel fees should be paid out of that portion of the fund recovered by those for whose benefit these actions were brought. ’ ’